Appellate Advocacy Blog

Trapped Between Two Precedents

            Appeals often turn on where the line exists between broad principles and specific applications. Advocates fondly cite high-flown rhetoric about something that favors their clients and the heavy burden that must be met to overcome it. On the other hand, opponents may meet that argument with declarations about how no right is unfettered and provide examples of exceptions that align with their position.

            Take, for example, the right to engage in political discussions. A familiar description of the right holds that it represents “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”[1]  The decision also recognizes that “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’”[2] In fact, the New York Times Court laid down the gauntlet by declaring that the First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”[3]

The clarion call for broad constitutional tolerance of political speech that the opinion represents provides welcome fodder for an advocate seeking to ride a free-speech wave. Yet, just a year later, the Supreme Court retreated a bit from that description of the scope of political speech. Rather than treat the right as completely unfettered, the Court acknowledged that freedom “implies the existence of an organized society maintaining the public order, without which liberty itself would be lost in the excesses of anarchy.”[4]

The two decisions set up a traditional appellate issue that can occur in any area of law: where is the cutoff between the promise and the limitation at issue in a case. Certainly, that conflict cannot be resolved in the abstract. It requires the factual context to determine which approach should prevail in a particular scenario.

            What is important, though, is that an advocate acknowledge the balancing that must take place. Unlike some negotiations, appellate advocacy is not about staking out an extreme position and hoping that a compromise gives you most of what you really want. Instead, it is about convincing your panel that you have adopted a workable and reasonable approach that it should endorse. That is why it is important to recognize the limits of your position, anticipating the pushback and responding to why it still works in your favor.

            At the same time, your position may require new exceptions or a wholesale rethinking of existing precedent. The Supreme Court has developed a reputation for not taking stare decisis as seriously as its predecessors. It has shown a willingness to reconsider precedent and abandon it because it believes the holding was wrong.

            In fact, two justices have called for New York Times, the case I quoted at the top of this post, to be reconsidered, although not as a result of any hostility to free speech per se. Justice Thomas, for example, advocates for reconsideration of the actual-malice standard that New York Times articulated to protect citizens from being sued by public officials over criticism. He has written that the case and decisions extending it “were policy-driven decisions masquerading as constitutional law” without a basis in text, history, or constitutional structure.[5] He has also expressed concern about the “proliferation of falsehoods” as a “serious matter” that might be remedied by “traditional remedies like libel suits.”[6]

            Justice Gorsuch has expressed a similar view, suggesting that the changes in “our Nation’s media landscape . . . in ways few could have foreseen” allows “virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world” and should permit some type of corrective mechanism like libel to work as it once did.”[7]

            I mention the possibility of an overruling of precedent, not because I believe it warranted in the case of New York Times, but because a request to reconsider precedent at the proper level of court can provide another tool for an advocate boxed in by precedent, particularly when there are ready advocates for that position on the court.

 

[1] New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[2] Id. at 271-72 (citation omitted; ellipses in orig.).

[3] Id. at 269.

[4] Cox v. Louisiana, 379 U.S. 536, 554 (1965):

[5] Blankenship v. NBCUniversal, LLC, 144 S. Ct. 5 (2023) (Mem.) (citations omitted) (Thomas, J., concurring in the denial of cert.). Blankenship is only the latest of opinions written by the justice expressing this view.

[6] Berisha v. Lawson, 141 S. Ct. 2424, 2425 (2021) (Thomas, J., dissenting from the denial of cert.).

[7] Id. at 2427 (Gorsuch, J., dissenting from the denial of cert.).

Questions to Consider When Preparing for Oral Argument

Most attorneys understand that you must know the record and the law when preparing for an oral argument before an appellate court.  You must craft a concise, organized, and compelling argument and be able to distinguish unfavorable law and reconcile unfavorable facts.

However, this is often easier said than done. Below are some questions that may help you prepare for oral argument.

    1.    How would you write the opinion?

If an appellate court asked you this question, what would you say?

You must be prepared to explain the reasoning underlying your position. For example, why is your position more consistent with the text of a constitution or statute? Why is your argument consistent with the court’s precedent? Have you considered unfavorable facts and law, and can explain why they do not affect the outcome you seek? How do you address counterarguments and why do those arguments lack merit?

Considering how you would write the opinion in your favor will help to organize your argument, explain your reasoning, and address weaknesses in your position.

    2.    How would you finish this sentence?

You should be able to state in one sentence why you should win your case.

For example, if you argue that imposing a sentence of life imprisonment without parole on a juvenile violates the Eighth Amendment. Imagine if an appellate court asked you to complete this sentence: “Imposing a sentence of life imprisonment without parole on a juvenile convicted of first-degree murder violates the Eighth Amendment because                                     .”

What would you say?

If you cannot state why you should win in one sentence, you will lack the clarity and conviction that excellent appellate advocates present in their arguments.  Consider the following responses to the question above:

Advocate: The Eighth Amendment, as this court is aware, protects against cruel and unusual punishment, and that determination depends on whether a punishment is consistent with evolving standards of decency that mark the progress of a maturing society. When applying this standard, this court should be mindful that circumstances today are far different from those that existed when the Eighth Amendment was adopted. When you consider how standards have changed, it is evident that executing juveniles, who cannot reason like adults, is cruel and unusual because it imposes on them a penalty that can only be justified for adults. The Eighth Amendment should not be interpreted to support unreasonable punishments and contemporary standards of decency counsel against such a draconian remedy.

This response is utter nonsense. It says nothing substantive whatsoever and shows that the advocate cannot concisely articulate why imposing a sentence of life imprisonment without parole would violate the Eighth Amendment.

Advocate: Imposing a sentence of life imprisonment without parole on juveniles convicted of first-degree murder violates the Eighth Amendment because such a sentence fails to consider that juveniles’ brains are not fully developed, disregards the principle that such sentences should only be imposed on the most culpable offenders, and ignores the well-settled rule that sentences must be proportionate to the severity of the offense.

 This response is not perfect, but it clarifies your argument and provides the court with three concise and concrete reasons that explain why imposing a sentence of life without parole on a juvenile violates the Eighth Amendment. That is far more persuasive and likely to garner support from the court.

    3.    Why shouldn’t the Court decide the case on grounds other than the ones you support?

Be sure to anticipate the alternative grounds upon which an appellate court might rule in your favor and be prepared to address them in depth. In so doing, do not argue that those grounds are insufficient, or that your position is superior. Rather, explain why the court’s reasoning is an equally justifiable way to support your position. Consider the following examples:

Court: Counselor, you argue that laws prohibiting abortion violate the right to privacy that is encompassed within the liberty protected by the Fourteenth Amendment’s Due Process Clause. But can’t you argue that such prohibitions violate the Equal Protection Clause because they place a unique and disparate burden on women that prohibits them from participating equally in society?

Advocate: That may be true, but our position, which is consistent with the Court’s precedent, is that prohibitions on abortion violate the right to privacy encompassed within the liberty guaranteed under the Fourth Amendment and that the court should rule on this basis.

   This response is terrible. That response tells the court that you reject the alternative reasoning that it may use to rule in your favor, and only want the court to rule based on the argument you presented. Instead of expanding the grounds on which the court could rule in your favor, this attorney just narrowed them and based his argument on a ground that the court did not even mention.

Consider this response:

Advocate: Certainly, the equal protection clause supports invalidating laws prohibiting abortion. As this court has recognized, such laws impose an undue and disparate burden on women and prohibit women from participating equally in the social and economic life of our society. Indeed, abortion prohibitions enshrine into law the very inequality and disparate impact that the equal protection clause prohibits. As such, these prohibitions violate the equal protection clause and, as we have argued, the liberty interest protected by the Fourteenth Amendment and this court’s jurisprudence.

This response is more effective. It acknowledges the court’s view that laws prohibiting abortion violate the equal protection clause, and it affirms that the equal protection clause could be a basis upon which to invalidate such bans while reinforcing the advocate’s original position that these bans violate the liberty interest protected under the Fourteenth Amendment’s Due Process Clause.

    4.    Why can’t the court rule on a narrower ground?

An appellate court may suggest narrower grounds to support a ruling in your favor. If it does, you should be prepared to support and justify those grounds and thus expand the bases upon which the court can rule in your favor. Consider the following example of a lawyer who is advocating that assisted suicide is a right protected under the Fourteenth Amendment’s Due Process Clause.

Court: Counselor, you acknowledge that your client is terminally ill, having suffered from Stage Four glioblastoma for approximately one year. Doesn’t your argument support a ruling that the right to assisted suicide only exists where individuals seeking to end their lives have terminal illnesses, and thus is not a license for anyone to end their lives simply because they wish to do so.

Attorney: Well, we argue that the right to assisted suicide should not be limited to a specific class of persons. Instead, this is a right that the liberty interests under the Fourteenth Amendment, and this Court’s jurisprudence, protect with qualification.

     This response is awful. The court is telling the lawyer that it wants to rule in his or her favor, but not on grounds as broad as the lawyer is advocating. The lawyer should take the hint and acknowledge that ruling on narrower grounds is justified because it supports a ruling in favor of the lawyer’s client and is a step toward recognizing a right to assisted suicide for all citizens in the future.

Consider this response:

Advocate: The liberty interest protected by the Fourteenth Amendment undoubtedly protects the right to assisted suicide for terminally ill individuals.  This right is based on the fundamental right to privacy and liberty recognized by this court and reflects the principle that if liberty means anything, it means giving terminally ill individuals the right to determine when to choose that they no longer wish to suffer.

   This response is more effective because the attorney pivoted from an absolutist position regarding the right to assisted suicide to a position that is more palatable to the court.  In so doing, the attorney enhanced his likelihood of succeeding and achieving a favorable result for the attorney’s client.

    5.    Will your position lead to unjust outcomes in future cases?

Good appellate advocates recognize that an appellate court does not care primarily about their client or the outcome of the case. Rather, the court cares about how its ruling will affect future cases, and whether such a ruling will lead to unjust outcomes in future cases. Accordingly, attorneys should advocate for a ruling in their favor on the narrowest grounds possible; doing so will make it less likely that such a ruling will lead to concerns about unjust outcomes in future cases.

Consider the following example, which involves a case where an attorney argues that life imprisonment without parole can be imposed on juveniles who commit first-degree murder.

Court: Counselor, if we adopt your rule, a ten or eleven-year-old child could receive a sentence of life imprisonment without the possibility of parole. Does that seem like a just result?

Attorney: Ten and eleven-year-old children are minors and, if they commit the heinous act of first-degree murder, nothing in the Constitution prohibits a sentence of imprisonment of life without parole. Indeed, such a sentence may be necessary to protect society and ensure public safety.

      This response is about as bad as it gets. The court is telling the advocate that it is not comfortable with adopting a categorical rule that all minors can be sentenced to life imprisonment without the possibility of parole. Knowing this, the attorney should immediately adjust his or her position and, to accommodate this concern, narrow the grounds upon which the attorney can achieve a favorable ruling. This attorney failed to do that.

Consider this response:

Advocate: Our position is not that any minor, regardless of age or circumstance, can be subject to a sentence of life imprisonment without parole. Rather, we argue that a categorical rule prohibiting the imposition of life imprisonment without parole of any minor, regardless of the severity of the crime, would allow some minors who engage in heinous acts of violence to escape responsibility for these acts. Of course, the court could rule in a future case that sentencing a ten or eleven-year-old minor to life imprisonment without parole violates the Constitution. Thus, a ruling in our favor does not prevent this court from addressing those concerns.

    This response is better. The attorney effectively addressed the court’s concern and explained that a ruling in the attorney’s favor would not prevent it from ruling that sentences of life imprisonment without parole for ten and eleven-year-old offenders violated the Constitution.

    6.    How does your argument impact the Court’s precedent?

In most instances, arguments that require a significant departure from a court’s precedent are less likely to succeed. Courts and litigants understandably value predictability and stability in the law, and arguments that would require a major departure from, or overruling of, precedent will be met with skepticism, particularly given the doctrine of stare decisis. Although there are exceptions, the best approach is to persuade the court that your argument (and the remedy you seek) is consistent with the court’s precedent or, at the very least, represents a logical expansion of, or imposes proper limits upon, such precedent.

***

When preparing for an oral argument, put yourself in the shoes of the appellate court judges. They want to reach a fair outcome that the facts and law support. If you can see your case from their perspective, and answer effectively the questions raised above, you will maximize your chances for success.

Neurodiversity and Legal Advocacy: Dyslexia

This is part two of my continuing series of posts about neurodiversity and legal advocacy. In today's post, I'll talk about my own neurodiversity - dyslexia. While each type of neurodiversity presents differently, I hope some of my personal experience and research can help you as either a teacher, partner, or mentor when you encounter dyslexic students or associates. If you are dyslexic yourself, the following may help you process your differences and see how they can be turned into strengths.

Studies estimate that from 10-20% of the population has dyslexia. Dyslexia involves a series of genetic, neurological differences that result in a different way of seeing the world. Given the prevalence of dyslexia, it is likely that you have taught or work with dyslexic thinkers.

1.    Strengths

Although traditionally seen as a disability, Richard Branson considers dyslexia to be his superpower, and several companies now hire dyslexic thinkers purposefully because of their strengths. Indeed, LinkedIn now includes "dyslexic thinking" as a skill. Those strengths include:

    A.     Big Picture Thinking

Most dyslexics see themselves as "big picture thinkers." They see trends and patterns in data more quickly than neurotypicals. This permits them to see how things connect in complex systems, categorize broadly based on similarities, and, conversely, quickly spot things that are out of place. The GCHQ, a British intelligence and security agency, employs over 100 dyslexic thinkers to assist in their analysis for this reason.

    B.     Problem Solving

Dyslexics tend to score very high in reasoning skills. Their big-picture view of the world helps them understand patterns and systems quickly, and they can then simplify those complex systems. They are logical and strategic thinkers. In the legal world, this means dyslexics may be able to see legal solutions based on prior precedent a bit more clearly -- once they understand the purpose and policy behind prior precedent, they can extrapolate it to newer areas quickly.

    C.     Creativity

Picasso, Pollack, Spielberg, Einstein and Roald Dahl were all dyslexic thinkers. That doesn't mean all dyslexics are artists, but most do see the world a bit differently, and process and explore it differently as well.

    D.     Empathy

Whether a function of their "big picture" thinking, their experiences in coping with difficulties in reading and writing, or both, dyslexic thinkers score high in empathy. They typically sense, understand, and respond to other people's feelings more quickly and accurately than neurotypical people.

    E.     Spatial Reasoning

When dyslexic children learn to read, the right hemisphere of their brain lights up on MRIs. Neurotypical children usually do not have the same response. This is hypothesized to be because the dyslexic brain tends to use spatial reasoning for everything, including reading. Rather than just hearing and assigning sounds to letters, the dyslexic child seems to create patterns and "shapes" for each word. This spatial reasoning persists in dyslexic thinking, with dyslexics often scoring highly on spatial reasoning and 3D imagination. This may be why they can be strong theoretical mathematicians, but still make sequential errors (they see the forests but miss the trees).

    F.     Communication

When these strengths are combined, they can make dyslexics excellent communicators. Big-picture thinking, empathy, and creativity mean that dyslexics can be strong narrative story-tellers. And Walter Fisher's narrative paradigm of communications suggests that this makes them more persuasive.

2.     Challenges and coping mechanisms

Of course, being dyslexic isn't always wonderful. Dyslexia was categorized as a disability for a reason - it carries with it significant challenges. People with dyslexia are sometimes described as being neurologically "spiky," with scores both higher and lower than the neurotypical (as that name would suggest). While building on the strengths listed above, the dyslexic thinker needs to recognize those challenges. Fortunately, there are numerous aids in helping them do so.

    A.     Organization.

Big picture thinkers need to learn to break things down into steps. While it is useful to see the forest, the trees still matter in the law. Brian Garner's "madman, architect, carpenter, judge" process is extremely helpful to me. I love the exploration of research (another dyslexic trait) but feel constrained by early organization. Using Garner's process, I naturally compose my big picture argument, use the law I find to create structure, then build and rebuild the argument.

    B.     Spelling and Grammar.

Spelling and grammar are most dyslexic thinkers' kryptonite. Yet most rubrics weigh them heavily, both because they matter and because they are easy to grade. This frankly inequitable bias has to be addressed, because it will impact them professionally. But it can't paralyze the writer.

I once had the privilege of spending an evening talking with Ray Bradbury. His primary writing advice? "Write the damn thing!" Dyslexics need to get a draft on paper without fear of failure. That may mean speech to text software. It may mean cut and pasting blocks of text from cases first, then revising later. But getting something on the page is what matters.

Then revise, revise, revise. Word has learning tools that are thoroughly explored in the website listed below. AI could also be used to help. But the main emphasis for a dyslexic writer should be that good writing is rewriting, even for neurotypical writers, but especially for dyslexic writers. A second set of eyes is also highly recommended. My wife, a history professor, reads almost everything I write. Including these blogs. If you aren't blessed with a wife with good grammar skills and the patience of Job, you probably have a paralegal, legal secretary, or co-worker who does.

    C.     Instructions.

Because dyslexics are big-picture thinkers, and because they often have some decoding lag-time, giving them instructions can be tricky. Rather than just telling students to "write a memo," the dyslexic student may need the necessary steps broken down for them. And they benefit greatly from iterative learning - letting them edit and rewrite assignments is a huge boost both in learning and emotional impact.

    D.    Short-Term and Working Memory.

Several studies have shown that dyslexic thinkers can have difficulty with both short-term and working memory. Working memory is a subset of short-term memory that involves remembering sequential steps, planning, and behavioral related decision making. We forget our keys and people's names and phone numbers with alarming regularity.

One of my coping mechanisms is to write things down immediately. If I am researching and have a thought, I write it down quickly. If I have a text or notification come through, it will probably disappear if I do not. I do the same at oral argument - I furiously write down questions and statements that I need to address and draw arrows and write numbers to organize them. Once I have done that, I am locked in, because I can visualize the new argument.

There are several strategies to look into: color association, chunking, visualization, and mnemonics are all useful. As is technology. Calendaring and note apps are a part of everyday life for me and most dyslexics.

    E.     Managing Emotional Impact.

Being a dyslexic student, or advocate, isn't easy. Issues with memory, organization, and difficulty grasping instructions quickly are all anxiety-inducing. Reading -- a huge part of our day -- is draining because of the additional decoding that must take place. Text-to-speech readers may be helpful. Extra time accommodations aren't necessarily an advantage to such students, so much as a way to help level the field. But making sure their strengths are valued is also key. Hopefully, a strength-based approach to your interactions with these students will help them see the value in their differences.

3.     Conclusion

Dyslexia makes me a better advocate, but only because I've learned to capitalize on its strengths and cope with its weaknesses. Hopefully you can help your students, associates, or yourself do the same by following some of these tips.

 

Further Reading

Made by Dyslexia - Website with tests, instructional videos, and teaching tools

Taylor, H and Vestergaard MD: 'Developmental Dyslexia: Disorder or Specialization in Exploration?' Frontiers in Psychology (June 2022).

 

(Photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)

A Font by Any Other Name Does Not Read the Same

Last week, I argued a case in the Tenth Circuit, my first time in that court. Upon arrival in the courtroom, but before that day’s arguments began, the bailiff provided a quick tutorial about how the 15 minutes of oral argument works. A computer display screen to the left of the podium counted down time from 15:00 against a green background at the beginning of each argument. At three minutes remaining, the background screen would become yellow, alerting counsel to the opportunity to reserve some of the remaining time for rebuttal. The bailiff warned that the court likely would continue asking questions even after the request for rebuttal time. In one of the cases before mine, the questions continued one minute past the 15 minutes, but the court afforded the advocate an extra minute for rebuttal.

In every circuit I have appeared other than the Tenth, and I have argued cases in seven other circuits, an advocate asks for a certain amount of time for rebuttal in advance of the argument, either from an inquiry from the clerk’s office well in advance of the argument, or upon checking in that morning. The most frequent amount of time requested in a 15-minute argument is five minutes.

The differences between circuits on that question and others seem odd and haphazard. I was reminded of those differences when I came across a post that laid out different fonts used by different courts in their opinions. The First and Fourth Circuits issue opinions in Courier. The Second and Seventh Circuits utilize Palatino. The Fifth Circuit favors Century Schoolbook, as does the Supreme Court (although its orders are rendered in the very odd Lucida Sans Typewriter) and the Federal Circuit. The rest, the Third, Sixth, Eighth, Ninth, Tenth, and Eleventh rely on Times New Roman.

The circuits do not necessarily require counsel to follow suit in their briefs. Federal Rule of Appellate Procedure 32(a)(5) requires courts of appeal to accept briefs in any proportional typeface so long as the text’s typeface has serifs and is at least 14-point in size, but sans-serif type may be used in headings and captions. If a monospaced face is used, it may not contain more than 10 1/2 characters per inch.

Even so, the D.C. Circuit issued a notice in 2021 that encourages the use of typefaces that are easier to read, such as Century or Times New Roman, while discouraging the use of Garamond, which the court deemed less legible because it is smaller. The preference exists in the practice handbook, but not in the local rules, strongly suggesting that it is always a good idea to check those official handbooks as well as the court’s own rules, even though the court will still accept other typefaces.

The Seventh Circuit’s practitioner handbook discusses the readability of serif-type fonts and appears to suggest that Century Schoolbook, Baskerville, Bookman, Caslon, Garamond, Georgia, and Times, as well as variations on those names, are preferred serif-type fonts. The Eighth Circuit, under a tab entitled “Rules and Procedures,” has a section called “Research Aids” that links to the Seventh Circuit’s handbook, so it apparently endorses its sister circuit’s discussion.

And don’t get me started on the requirements for cover pages, where the Second Circuit is a major outlier.

The bottom line is that every circuit has its quirks that a practitioner appearing in them needs to understand. These circuit conflicts will not likely arrive at the Supreme Court to resolve.

How To Change Someone's Mind

It is not easy to convince a judge (or any audience) to adopt your point of view, especially when the audience has a firmly entrenched and opposing opinion. Below are a few tips that can maximize the persuasive value of your arguments and enhance your likelihood of success.

1.    Craft a powerful story by showing, not telling.

People are captivated by powerful narratives.

When making an argument, focus on the facts of your case and tell a compelling – and concise – story in which you demonstrate that a result in your favor would be the most fair, just, and equitable outcome. Think of your argument like a fiction book or a movie, in which you do the following:

• Begin with a powerful opening theme that hooks the audience.
• Provide the audience with the necessary background facts while omitting irrelevant or extraneous facts.
• Use the Rule of Three to structure your argument by providing the audience with three reasons justifying your position.
• Emphasize the most favorable facts that support your argument.
• Never ignore unfavorable facts; instead, explain why they do not affect the outcome you seek.
• Use active verbs and vivid descriptions to enable the jury to visualize the story in their minds.
• Whether in writing or during an oral argument, adopt a composed, mature, and confident demeanor and avoid unnecessary emotion, drama, or over-the-top language.
• Put yourself in the shoes of your audience and craft your story based on, among other things, the questions and concerns that you expect will arise.

Consider the following examples involving a defamation claim.

Example 1: “In this case, the defendant made defamatory statements about the plaintiff and those statements caused the plaintiff to suffer damages. As we will show, the statements meet the definition of defamation under the relevant legal standards, and no defenses are available that can excuse or otherwise justify the defendant’s statements. We will demonstrate by a preponderance of the evidence that the statements were defamatory and that the plaintiff is entitled to recover damages.”

This statement is about as bland as it gets. Furthermore, it does not show the court anything. For example, it does not identify the precise statements that were defamatory, detail to specific reputational harm suffered, or explain why any potential defenses lack merit. It merely tells the court what happened and tells the court what to do. That is not persuasive at all.

Example 2: “The First Amendment is not a license to destroy a person’s reputation. On January 21, 2024, the plaintiff, Sharon Connor, who is the owner of Health Foods Market in the small town of Seashore, New Jersey, awoke at 6:30 a.m. and turned on her computer to respond to emails from several of her employees. One of those emails informed Sharon that, on the website, www.trashmyemployer.com, an employee whom Sharon recently terminated after three consecutive negative performance reviews had posted degrading and demeaning comments about Sharon. They included the following: “Sharon is a Nazi sympathizer;” “Sharon discriminates in the hiring process based on a person’s ethnicity and religious beliefs;” “Sharon artificially inflates prices and mocks the customers for being too stupid to notice;” and “Sharon treats her employees so badly that they are routinely traumatized after leaving work.” In Seashore, New Jersey, a small town where ‘everybody knows your name,’ Sharon was ridiculed, insulted, and ostracized from the community that she had called home for thirty years. She lost friends. Her business has suffered a thirty-five percent decline in profit. And twenty-five percent of her employees have quit. In short, this case implicates precisely what defamation law is designed to protect: a person’s reputation.”

This example is certainly not perfect, but you get the point. It begins with a theme. It tells a story by offering specific and vivid details. Additionally, it shows (not tells) the court why it should rule in the plaintiff’s favor. As such, it is far more persuasive than the first example.

Judges (and most people) do not like to be told what to do or how to think. Rather, they want you to give them the facts in a way that enables them to reach the most fair and just outcome.

2.    Obtain agreement over common values.

When addressing an audience, you are more likely to persuade the audience to rule in your favor if the audience agrees with the common values that undergird your argument. Indeed, when you and your audience, such as a judge or jury, begin a discussion from a point of agreement rather than contention, your likelihood of reaching a positive outcome or, at the very least, a reasonable compromise, increases.

Consider the following hypothetical example of an advocate trying to convince a hostile judge to adopt his or her position that the Constitution does not protect a right to abortion:

Example 1: “Your Honor, the Constitution says absolutely nothing about abortion, and the Supreme Court’s jurisprudence establishing a right to abortion is deeply flawed. The fact is that abortion involves the killing of human life, and it has nothing to do with a woman’s bodily autonomy. Sanctioning the murder of human life is antithetical to every value upon which this country is founded, and women should know that when they get pregnant, they are responsible for a life other than their own.”

This argument is so awful that it will alienate the judge and ensure that you lose. No one likes to be talked down to in such a condescending manner and told that they are wrong. Advocates who adopt such categorical positions are likely to be viewed as ignorant of the complexities that legal issues invariably present. Moreover, the argument is so politically charged that even the advocate’s most ardent supporters might question the advocate’s competency.

Example 2: “Your Honor, the decision whether to have an abortion is deeply personal and private. And we certainly respect a woman’s right to make that difficult decision in consultation with a woman’s health care provider. Our argument is not about the morality of having an abortion. Rather, it is simply about giving the people of each state the authority to decide whether abortion should be legal in their state. Some states may allow it; some may not. But at the end of the day, this is a decision to be made by the people of each state, not nine unelected judges.”

In this example, which is again not perfect, the advocate recognizes that abortion is a complex issue that is deeply personal and private to the individual. Also, the advocate is not denying the fundamental proposition that a woman should have the right to make this decision. Instead, the advocate is arguing that citizens, not the Court, should have the authority to determine the legality of abortion, which will almost certainly guarantee that abortion will be legal in many, if not most, of the states. Of course, this will still upset many abortion supporters, but at the very least it will demonstrate that you are not fundamentally opposed to abortion itself.

This is not to say, of course, that you will win by taking the latter approach. But you will have a more persuasive impact, maintain your credibility, and possibly get the swing justice(s) to rule in your favor or agree to a compromise.

3.    Show that you have empathy and maturity.

Excellent advocates show empathy for an opposing view, recognize the reasonableness of the opponent’s position, and acknowledge the nuances that most legal issues present. Indeed, people have different views based on their experiences and backgrounds. Displaying empathy for opposing views enhances your credibility, makes you likable, and shows that you possess humility and maturity.

Consider the following examples regarding an argument over whether the death penalty should be authorized for the rape of a child.

Example 1: “Your Honor, killing a defendant for the crime of child rape makes no sense whatsoever. The victim in this case is not dead. The victim will fully recover, and because the victim is only ten, will go on to lead a long and productive life. For these reasons, imposing the death penalty on the defendant, who has never killed anyone, is grossly disproportionate to the crime, and permitting the state to murder a child rapist is worse than the act of child rape itself. Anyone who advocates otherwise shows little regard for the sanctity of human life.”

That argument is so bad that even those who may agree with your position may be turned off by the sheer lack of empathy and insensitivity to the gravity of such a horrific crime. It will also likely offend anyone who supports the argument that you just attacked, particularly the victim’s family. And if you make this argument to a jury, you will alienate the jury and come off as an insensitive jerk.

Example 2: “Your Honor, raping a child is a horrific crime. Few words could capture the trauma and devastation that such a heinous act causes and anyone who commits such a crime should be subject to severe punishment. Our position is not that the defendant should not be punished, but rather that the death penalty, given the Court’s jurisprudence, is not the appropriate punishment. Instead, we respectfully submit that sentencing the defendant to life imprisonment without parole will reflect both the proportionality of the offense committed and impose the punishment deserved.”

This argument is better because it empathizes with the victim, acknowledges the irreparable harm caused, and recognizes that severe punishment is warranted. Furthermore, the alternative punishment proposed is reasonable given the gravity of the offense. Ultimately, having empathy shows that you have maturity, compassion, and humility. So make sure that you are respectful and measured and that you never demean an adversary, the court, or the victim of a crime. Instead, conduct yourself with class, dignity, and civility, and realize that most rational people despise jerks. No one likes narcissists. No one likes people who are condescending or insufferable loudmouths.

4.    Focus on the consequences of adopting a particular position.

Judges and juries are human beings. They are not robots. They want to reach outcomes that they believe are just and fair.

As such, they do not mindlessly apply the law without any regard for the present and future consequences that will result from a decision or a verdict. This is especially true given that, in most cases, precedent does not provide a clear answer to a current legal question, and considering that, in many instances, a law or constitutional provision is ambiguous and capable of different interpretations.  Thus, when trying to persuade a court, do not simply engage in a hyper-technical legal analysis that shows no appreciation for the real-world consequences of a ruling in your favor.

Consider the following examples concerning two advocates who are arguing that law enforcement officers should not, under the Fourth Amendment, be allowed to search a suspect’s cell phone incident to arrest.

Example 1: “Mr. Chief Justice, and Members of the Court, the Court’s search incident to arrest jurisprudence makes clear that the primary purpose of warrantless searches incident to arrest is to preserve evidence and protect officer safety. Although the Court has expanded the search incident to arrest doctrine to include searches of closed containers and passenger compartments, it has never applied the doctrine to cellular telephones. And for good reason. Warrantless searches of cell phones do not implicate evidence preservation or officer safety. Thus, expanding the doctrine to include cell phones would completely unmoor the search incident to arrest doctrine from its original purposes and finds no support in the Court’s precedent.”

This argument is not terrible, but it misses the point. The Supreme Court has the authority to limit or expand precedent whenever a majority votes to do so. The Court also has the authority to overrule, disregard, or distinguish its precedent. Thus, the Court will be less concerned with strictly adhering to its precedent and more with the real-world consequences of its decision on future cases involving warrantless searches incident to arrest.

Example 2: “Mr. Chief Justice, and Members of the Court, the original purpose of the Fourth Amendment was to protect citizens’ private papers and effects, which at that time were stored in the home, from unreasonable and warrantless searches. Indeed, the privacy protections that lie at the heart of the Fourth Amendment – and this Court’s jurisprudence – are sacrosanct, and this Court has exercised circumspection when permitting warrantless searches into citizens’ private space. That principle is at issue – and under attack – today because, in the Twentieth Century, cell phones house the private papers and effects that, at the time of the Fourth Amendment’s adoption, were traditionally stored in the home. Cell phones store, among other things, personally identifying information, private photographs, financial information, email and text messages, internet browsing and purchasing history, and personal contacts and telephone numbers. To permit law enforcement to search a cell phone without a warrant in the Twentieth Century is equivalent to permitting law enforcement to search homes without a warrant in the Eighteenth Century. It would permit vast and suspicionless intrusions into private spaces and property and allow the types of warrantless fishing expeditions that the Fourth Amendment and this Court’s jurisprudence prohibit. In essence, privacy rights would become a thing of the past, and warrantless searches into the most private aspects of a citizen’s life would be a thing of the future. It would, simply stated, render the Fourth Amendment meaningless.”

This argument, while again not perfect, is more effective because it brings to the Court’s attention the real-world consequences of a decision allowing warrantless searches of cell phones incident to arrest. And those consequences would be substantial. Privacy rights would be significantly weakened, and law enforcement would be permitted to do exactly what the Fourth Amendment prohibits: warrantless and suspicionless searches of a citizen’s most private information. Faced with such consequences, it should come as no surprise that in Riley v. California, the Court held unanimously that warrantless searches of cell phones incident to arrest violated the Fourth Amendment.

5.    Listen and do not interrupt.

This requires little explanation.

They often say that those who get their way are the ones who talk the loudest. In other words, intolerable jerks usually get what they want because people will do anything to shut them up. This approach may work in a faculty meeting, but it will not work in a courtroom.

Good advocates know how to talk less and listen more. Being a good listener shows that you have humility. It also enables you to identify the specific concerns that judges have when evaluating the merits of your case and to adjust your argument accordingly. Additionally, it shows that you recognize weaknesses in your argument and are willing to address them thoroughly and explain why they do not affect the outcome you seek.

Consider the following example:

Example: “Your Honor, I respectfully submit that the liberty protected by the Fourteenth Amendment to the United States Constitution encompasses a right to assisted suicide.”

Judge: “Well counsel, when we speak of the liberty protected by the –”

Counsel: “Your Honor the Supreme Court has been clear that the word liberty encompasses substantive rights, and no right is more central to liberty than having the right to determine the manner and method by which one dies.”

Judge: “I understand that, but what I’m trying to determine is if the liberty protected must be –”

Counsel: “Your Honor, the Supreme Court has already held that the word liberty protects personal privacy, and nothing could be more private than the decision on when to terminate one’s life.”

Judge: “Let me finish. I am concerned about whether the liberty interests protected under the Fourteenth Amendment must be deeply rooted in history and tradition.”

Counsel: “I apologize Your Honor. I misinterpreted your question.”

This attorney is a moron. The attorney looked foolish and unprofessional and was so oblivious that the attorney stated that the question, which the attorney never allowed the judge to ask, was misinterpreted. Doing something like this will destroy your credibility, infuriate the judge, and make it all but certain that you will lose your case.  It will also ensure that, if married, your partner will divorce you.

***

Presenting a persuasive argument requires you to use techniques that connect with your audience on a personal level and that convince the audience that your argument leads to the fairest and most just outcome. Using the techniques above will help you maximize your argument’s persuasive value and your likelihood of success.

Justices, Not Judges

This past week, I had the privilege of opening the Mid-Year Conference of the California Judges Association with a speech about the rule of law and how we can preserve it. The topic was one the group requested, and it provided me with a welcome opportunity to consider the indefinite meaning of the rule of law without specific laws it seeks to establish as the normative structures of society, its malleability throughout our nation’s history, and the many revolutionary ways it has changed and will likely change in the future.

In this post, however, I do not plan to get into that heavy subject, but instead relate an anecdote about one oral argument at the Supreme Court that exemplifies how the rule of law is really a rule of acceptable norms, not necessarily law itself. I opened my remarks with this story.

When one argues a case at the Supreme Court, upon checking in, you are handed two cards, slightly larger than a business card. One provides a kind of aerial view of the bench, showing the curved bench with boxes depicting the array of the justices, the positions of the marshal and clerk, and the place of counsel at the podium. Each person is depicted as a number, and a legend indicates who each number represents. It provides you with a reminder of where each justice sits.

A second card serves two purposes. One purpose is as an admission ticket that lets court personnel in the courtroom know that you belong at counsel’s table as counsel in a specific case. It also has three instructions. First, it reminds you that you should not speak until acknowledged by the chief justice. Second, it tells you that you should not introduce yourself but begin with the familiar, “May it please the Court, …” And, finally, it says that if you address a member of the Court, it should be as “Chief Justice” or “Justice …,” not judge, with that word italicized on the card.

More than 20 years ago, a novice violated the last of these admonitions, not once, but three times, possibly due to nerves. In response to questions from Justice Kennedy and then Justice Souter, she addressed them as judges. Each time, then-Chief Justice Rehnquist corrected her by saying that’s “Justice ______.” No doubt, the cognoscenti in the courtroom silently clucked at such a faux pas by an advocate. Not long afterwards, however, she compounded these episodes by calling the chief justice “judge.” Rehnquist then said, “Counsel is admonished that this Court is composed of justices, not judges.

Stunned and chastened, the advocate hesitated to say another word, but Justice Stevens interrupted, as he was often prone to do to make counsel more comfortable. He said, “It’s OK, Counsel. The Constitution makes the same mistake.”

Indeed, the Constitution, in Article III, refers to “judges” of the supreme and inferior courts as holding office during good behavior – the only other mention of a member of the Supreme Court is in the impeachment article, where it states that the “Chief Justice” shall preside when the president is subject to an impeachment trial.

Even if the Constitution designates members of the Supreme Court as “judges,” no advocate will ignore the norm that members of that court are called justices, and the card advocates receive continue to tell them not to use the word “judge.” Even though the Constitution is the “supreme law of the land,” it does not supply the rule of law when addressing the Court. Instead, another norm does. That means that while we venerate the rule of law and some of the Court’s end-of-the-term rulings may have many questioning what happened to the rule of law, the admiration and allegiance we hold to the concept reflects only our personal perceptions about the substance of law and how we legitimately determine that substance. Keep that in mind as you review the momentous decisions we expect from the Court this term, and when you ask any appellate court to reach a decision.

Lessons in Resilience from Moot Court

Last year marked my 25th year of coaching moot court. This year was the first year for our program to win ABA NAAC. I think the two are related, and wanted to share some thoughts on what I've learned over the years.

First, moot court, like many skill exercises, prepares students for work in many ways. They learn principles of rhetoric that are too frequently untaught. They learn the importance of standards of review, limiting principles, and the potential impact of new law to judges. And, of course, they learn to organize and simplify their thoughts on both print and at the podium.

But moot court teaches much more than that. It teaches students time-management skills. They learn to collaborate with others. They learn accountability. And they learn to lose.

That last lesson is, I think, key. Even before COVID, psychologists were noting a serious decline in resilience among incoming college students. Many students had become afraid to take risks, because failure was seen as catastrophic. As a result, they had begun to avoid public speaking or competition, and to instead demand easier grading, do-overs, and other safety measures that ensured they would not make lasting mistakes. Or learn from them.

Then COVID hit. Whatever problems were brewing before that were magnified by the isolation and trauma many young people felt.

Studies in resilience show that it has several predictors. High self-esteem and strong social attachments help. And exposure to stressors, in moderation, can build up a sense of resilience. Some have taken to calling this latter form of resilience "grit."

Moot court teaches grit. It teaches students (the vast majority of them, at least) that they will not always win. That sometimes, this will seem subjective and unfair. And that they need to learn from those failures, grow, and try again. It teaches them that failure is fuel.

Our program's success this year was carried by a lot of that fuel. Nine years ago we made it to ABA NAAC nationals and lost. One of those competitors was so fueled by that loss that she became my co-coach, just to help us get back and try again. Three years ago we made it to ABA NAAC finals. We lost again. Those students have volunteered to guest judge every year since. And this year, my teams lost in finals at our state competition, and lost at NY Bar Nationals. Then a dry cleaner lost one student's suits, and an earthquake hit during the competition itself.

None of that mattered. By then, these students had resilience to spare. They had heard the stories, they had experienced the losses, and they wanted nothing more than to keep going, and daring for greater things. And with that resilience, built over a decade of pain in this competition, we won.

Teddy Roosevelt is often quoted for saying:

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again... who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly.”

We need to teach our students to dare greatly. Moot court helps them learn to do just that.

Lessons in Appellate Advocacy from the Supreme Court's Oral Argument in Trump v. United States

The recent oral argument before the United States Supreme Court in Trump v. United States, which concerns presidential immunity, provides several lessons about how to argue a case effectively and persuasively. Although the attorneys for the petitioner and respondent used their persuasive advocacy skills to varying degrees of effectiveness, both did so very competently and demonstrated why they are elite advocates. Below are a few lessons in advocacy that were on display at the oral argument.

1.    Have a strong introduction.

Make a great first impression with a strong introduction.  Begin with a powerful opening theme. Tell the court precisely what remedy you seek. And explain why, in a structured and organized way, the Court should rule in your favor. For example, use the Rule of Three, namely, provide the Court with three reasons that support your argument and the remedy sought.

In Trump, the lawyers for the petitioner and the respondent had effective and persuasive introductions. They opened with a strong theme. They got to the point quickly. They explained in detail and with specificity why the Court should rule in their favor. Doing so enabled both lawyers to, among other things, start strong, gain credibility with the Court, and frame the issues in a light most favorable to their side.

2.    Answer the Court’s questions directly and honestly.

Regardless of how persuasive your introduction is, the justices will express concerns about various legal, factual, or policy issues that impact the strength of your case. Thus, when the justices ask questions, particularly those that express skepticism of your argument, view it as an opportunity to address the justices’ concerns and present persuasively the merits of your position. In so doing, make sure to always answer the questions directly and honestly, as any attempt to evade the questions will harm your credibility. Additionally, if necessary, acknowledge weaknesses in your case (e.g., unfavorable facts or law), and explain why those weaknesses do not affect the outcome you seek. Also, be sure never to react defensively in response to a question; instead, act like you expected the question and use the question to enhance your argument’s persuasiveness.

During the oral argument in Trump, the lawyers for the petitioner and respondent were well-prepared, answered the Court’s questions effectively, and conceded unfavorable facts where appropriate. As a result, they maintained their credibility and enhanced the persuasive value of their arguments.

3.    Speak conversationally and confidently.

During oral argument with an appellate court, particularly the U.S. Supreme Court, adopt a conversational tone and confident demeanor. Recognize that the Court is trying its best to reach a fair result that is consistent with the law and the facts. The law and facts, however, often do not dictate a particular outcome, and sometimes judges are left with little more than a desire to reach what they believe will be the best result. Indeed, judges are human, and when they return home after a long day, and their partner asks how their day was, the last thing judges want to say is “Well, I decided several cases that led to horrible outcomes. Other than that, it was a wonderful day.”

As such, your role, while advocating zealously for your client, should be to have a conversation with the Court in which you acknowledge the Court’s concerns and the policy implications of the outcome you seek, and convince a majority of the justices that the result you seek is fair and equitable. Put differently, while you must advocate zealously for your client, you should also display some degree of objectivity that shows an awareness of, among other things, opposing points of view and weaknesses in your case.

During oral argument, both advocates spoke conversationally and confidently and never appeared uncertain, surprised, or equivocal. Projecting confidence is critical to maximizing the persuasiveness of your argument, and speaking conversationally ensures that you can communicate your argument effectively.

4.    Be mindful of your pacing, tone, and non-verbal communication.

It is not just what you say. It is how you say it. Thus, when making an argument, be sure not to speak too quickly. Do not use over-the-top language or attack your adversary. Use strategic pauses to thoughtfully respond to the Court’s questions and transition effectively to different arguments. Never show frustration, surprise, or combativeness in response to a question. Instead, show that you are a composed and thoughtful advocate who listens well, and forms reasoned responses to difficult questions.

Also, be mindful of your non-verbal communication, including your appearance, body language, facial expressions, posture, eye contact, and hand gestures, as non-verbal communication can enhance or detract from the persuasiveness of your argument.

During the oral argument, both advocates avoided speaking too quickly and rushing through their points. They never displayed a combative and adversarial tone. They spoke clearly and articulately, and in a manner that made their arguments straightforward, organized, and easy to understand.

5.    Adjust your argument strategy based on the Court’s questions.

When you begin an oral argument, you know what points you want to emphasize. But the justices may want to discuss other things, and a good advocate recognizes this and adjusts accordingly.

Consider the following example:

Advocate: Your Honor, the warrantless search of the suspect’s house in this case did not violate the Fourth Amendment because the victim’s body was visible to the officer and therefore the search falls within the plain view exception to the warrant requirement.

Justice: But counsel, the officer was unlawfully on private property when she saw the victim’s body, rendering the plain view exception inapplicable. However, it seems that the exigency exception applies because the victim was still breathing, although gravely injured when the officer encountered the victim and entered the home.

Advocate: Your Honor, the plain view exception applies because the officer was on public, not private, property, and as a result, it applies squarely to this case.

Justice: Well let’s assume that I conclude that it was private property. Doesn’t the exigency exception apply?

Advocate: Your Honor, this was public property. The plain view exception is clearly applicable.

***

The advocate’s performance in this colloquy was simply awful.

The justice is unquestionably signaling to the advocate that he or she believed that the exigency, not the plain view, exception to the Fourth Amendment applied to justify the warrantless search. But the advocate, for some reason, did not perceive or simply ignored this and adhered rigidly to his or her argument. That can be a fatal mistake. As stated above, although you may want to emphasize specific points, the justices may not care about those points and instead want to discuss other issues that, in their view, may be dispositive. When that happens, adjust your strategy in the moment and respond to the justices’ concerns. Do not be afraid to abandon your oral argument strategy if, as the argument unfolds, it becomes clear that the case will be decided on facts, law, or policy considerations that you did not anticipate.

During the oral argument, nothing like this occurred because the lawyers for the petitioner and the respondent were far too skilled, intelligent, and experienced to make this mistake.

6.    Be aware of the dynamics in the room and realize that there is only so much you can do.

Judges often have opinions on how to decide a case after reading the parties’ briefs and before the oral argument. Although oral argument can, in some instances, persuade the justices to reconsider their views, oral argument sometimes consists of the justices trying to convince each other to adopt their respective positions, without much regard for what you have to say.

Put simply, sometimes the outcome is preordained. For example, in Trump v. Anderson, it was obvious early in the oral argument that the Court would overturn the Colorado Supreme Court’s decision holding that former President Trump was not eligible to be on Colorado’s primary ballot. If you are faced with this situation, realize that all you can do is make the best possible argument, knowing that losing the case is not a reflection of the quality of your advocacy but rather a reflection of the justices’ predetermined views. In Trump v. Anderson, for example, Jason Murray, the attorney representing the respondents, did an excellent job of making a credible argument despite the obvious fact that the Court would not rule in his favor.

Also, realize that you are not a magician or a miracle worker. Judges can have strongly held views and the results that they reach sometimes have little, if anything, to do with what you said or did not say during an oral argument. If you are arguing that Roe v. Wade was correctly decided and should be reaffirmed, nothing you say is going to convince Justices Thomas or Alito to adopt your position. Likewise, you are not going to convince Justice Sotomayor that affirmative action programs are unconstitutional. You are also not going to convince Justice Alito that the substantive due process doctrine should remain vibrant in the Court’s jurisprudence. Knowing this, focus on the justices that are receptive to your argument, particularly the swing justices, and tailor your argument to their specific concerns. And, if they ask ‘softball’ questions, be sure to seize that opportunity to make your case persuasively because they are using you to convince the swing justices.

Surely, during oral argument, the lawyers for the petitioner and the respondent knew which justices were receptive to their arguments, which were hostile, and which were undecided. And they addressed swing justices’ questions effectively and persuasively.

7.    Be reasonable.

If you want to retain your credibility, make sure that your argument – and the remedy you seek – is reasonable. Advocating for an extreme or unprecedented result that departs significantly from the Court’s jurisprudence, or that leads to a terrible policy outcome, will get you nowhere. For example, during the oral argument in Trump, Justice Sotomayor asked counsel for Trump whether his argument for absolute presidential immunity would allow a president to assassinate a political rival. Trump’s counsel responded by stating that it would depend on the hypothetical and could constitute an “official act,” thus triggering absolute immunity. Most, if not all, judges would reject this argument because it is simply ridiculous to contend that a president could assassinate political rivals with impunity.

Thus, be reasonable when presenting your arguments and requesting specific remedies. Every argument has weaknesses that those with different perspectives will expose. As such, in most cases, avoid absolute or categorical positions that eschew nuance and that prevent the Court from reaching a compromise. Doing so will enhance your credibility and show that you recognize the complexities of the legal issue before the Court.

During the oral argument, the attorney for Trump, although very skilled, arguably advocated for an unreasonable outcome, namely, that the president is always immune from prosecution for official acts done while the president is in office. The problem with this argument, as Justices Sotomayor, Jackson, and Kagan emphasized was that it would allow a president to engage in a wide array of criminal conduct, including the assassination of a political rival, with impunity. That result is simply not reasonable and consistent with the principle that no person is above the law. A better strategy may have been to adopt a more nuanced argument that recognized when, and under what circumstances, presidential immunity should apply, and to give the Court a workable test to distinguish between official and private acts. Adopting an unreasonable position detracted from the persuasiveness of Trump’s argument, and the Court signaled that it would reject this extreme, all-or-nothing approach.

8.    Realize that nothing you do is as important as you think.

Whether you win or lose, the world will keep turning and the sun will rise tomorrow. Sure, there are incredibly impactful cases, such as Brown v. Board of Education, Bush v. Gore, and Dobbs v. Jackson Women’s Health, which significantly affect the rights and liberties of citizens. Your role in influencing that outcome, however, is often far more insubstantial than what you believe, and inversely correlated to the absurd amount of hours you spent litigating the case. Think about it: do you believe that the oral arguments (or briefing, for that matter) in Brown, Bush, or Dobbs caused any of the justices to change their minds? Why do you think that, in some cases, anyone familiar with the Court can predict how the justices will rule before oral argument even occurs? You should know the answer.

Of course, you should still work extremely hard and hold yourself to the highest standards when arguing before a court. Persuasive advocacy skills do matter, particularly in close cases. However, your ability to affect the outcome of a case or the evolution of a court’s jurisprudence is, in some instances, quite minimal, and your inability to reach the outcome you seek is often unrelated to your performance or preparation. So do not put so much pressure on yourself. Have humility and focus on what you can control – and ignore what you cannot. Doing so will help you to cope with the unpredictable and unexpected outcomes that you will experience in the litigation and appellate process. And remember that no matter what happens, life will go on. You should too. And I suspect that the lawyers for the petitioner and the respondent will do precisely that.

***

Ultimately, what matters is not how many cases you win or how much money you make. What matters is the relationships that you form with other people, which are more important than anything that you will do in the law. So don’t sweat the small stuff, because, at the end of the day, it’s all small stuff.

Absolute Presidential Immunity as an Appellate Strategy

On April 25, the Supreme Court will hear oral argument in Trump v. United States, the case in which former President Trump’s lawyers will argue, among other things, that a president has absolute immunity from the criminal charges that covers every action of a president. In this instance, they claiming that Trump was advancing electoral integrity when he urged supporters to go to the Capitol on January 6, 2021, which resulted in violence that temporarily halted the tallying electoral votes so that Joseph Biden could take office as the incoming president.

The assertion of absolute immunity may seem incredulous as a strategic choice. Rare is the instance that an appellate advocate should elect to argue the most extreme position possible, particularly when the argument has no textual anchor, no precedential support, and obvious counterarguments. To place a president entirely above the law suggests that the American Revolution, the Constitution, and tradition renders the chief executive a king who wield every possible prerogative and can do no wrong, when we have been taught that the opposite is true.

During argument before the D.C. Circuit, one judge asked whether the president could order Seal Team 6, the elite unit of Navy Seals, to assassinate a political rival. Counsel responded that only impeachment and not criminal prosecution was available under that hypothetical. Judges and the public, expectedly, reacted harshly to that extreme and indefensible position.

The question then, from an advocacy perspective, is why adopt it? Certainly, there are times when a court splits the difference between the positions taken by the two parties, so that the party advocating the most extreme position, as in a negotiation, pulls the center closer to its view. Other times, a position is presented, not to prevail, but to plant a seed that may sprout at a later time. A powerful separate judicial opinion that seeks to justify the position in some instances provides an opportunity to fight another day and to generate more debate and scholarship in favor of the position.

In the Trump case, I doubt that either of these potential outcomes are what his counsel has in mind. Neither is likely to accomplish their client’s current need: the end of the prosecution. Instead, the argument fuels their delay stratagem, which hopes that the trials take place at a time when President Trump can make a triumphant return to the White House and order the Justice Department to drop the prosecutions, or that a defeated candidate who is no longer a threat receives a pardon or other beneficence from the victor to avoid the spectacle of a former president in prison. Still, the argument might produce language, helpful to a defense, about what constitutes the outer boundaries of official action, where the doctrine of qualified immunity provides some guidance.

I expect that this last point is why Trump’s counsel has argued that every act as president is an official act. This argument seeks to goad the Supreme Court into laying down criteria for evaluating when a president is engaged in an official act. Any guidelines are likely to be vague, creating room for exploitation when and if a case goes to trial. While election integrity sounds like official action, the presidency has no specific responsibilities on that issue and exhorting private citizens to march on the Capitol to keep an eye on Congress hardly sounds like official action in support of fair elections.

Still, it is worth noting that the absolute-immunity argument is not counsel’s untethered invention. It borrows from and seeks application of language adopted by the Supreme Court in Nixon v. Fitzgerald,[1] which held that former President Nixon was absolutely immune from private civil actions for “official conduct” even at the outer perimeter of presidential authority. In the case, a former air force employee sued the former president on a claim that Nixon had fired him over his whistleblowing testimony before Congress. The Court reasoned that a failure to immunize presidential actions would encourage lawsuits aimed at presidential actions to a degree that would distract a president from the duties of office and chill presidential choices to an extent that would “render an official unduly cautious in the discharge of his official duties.”[2] Although the Court took pains to distinguish criminal cases because of their greater public interest and importance, that type of marker can erode over time.

Notably, the Court found no distraction issue in 1997 when it held that then-President Clinton had no immunity from a lawsuit involving sexual allegations that predated his presidency in Clinton v. Jones.[3] Key to the decision was that the allegations concerned private actions unrelated to the exercise of presidential power, thus not creating a concern that it would induce hesitancy about official duties.

While I doubt that the absolute-immunity gambit will work in its purest form, Supreme Court decisions often create new issues that become fodder for future cases or arguments in the same case. In United States v. Nixon,[4] the Court unanimously held that the president could not claim executive privilege to avoid the Watergate special prosecutor’s subpoena for presidential audio tapes. Still, in the course of rejecting the executive-privilege argument, the Court gave executive privilege a firmer foundation than it had ever commanded before. Expect the same for presidential immunity in the opinions that come out of Trump v. United States.

 

[1] 457 U.S. 731 (1982).

[2] Id. at 752 n.32.

[3] 520 U.S. 681 (1997).

[4] 418 U.S. 683 (1974).

Attack the Reasoning, not the Judge

In her post Be Accurate in Your Case Citations, Professor Dysart mentioned two things that she emphasizes when she talks to attorneys and students about professionalism in appellate advocacy. First, the importance of accurately representing case law and the record. (Her post focused on this point.) Second, the importance of not attacking the lower court judge or opposing counsel. The latter point called to mind Sanches v. Carrollton Farmers Branch Independent School District.[1]

There, the appellant’s opening brief contained this paragraph:

The Magistrate's egregious errors in its failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur of the assignment to Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches' Section 1983 claims and summarily dismissed them without analysis or review. Because a magistrate is not an Article III judge, his incompetence in applying general principals of law are extraordinary.

This paragraph was of much interest to at least one judge on the panel. Appellant’s counsel spent the first five minutes of his fifteen minutes of oral argument time responding to questions about the attack on the magistrate judge’s competence. You can listen to the argument here: Sanches Oral Argument.wma. That time would have been better spent discussing the substance of the appeal.

The court’s PUBLISHED[2] decision called out the attack on the magistrate judge:

Not content to raise this issue of law in a professional manner, Sanches and her attorneys launched an unjustified attack on Magistrate Judge Stickney. The main portion of the argument on this point, contained in Sanches's opening brief, reads verbatim as follows:

The Magistrate's egregious errors in its [sic] failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur [sic] of the assignment to [sic] Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches' Section 1983 claims and summarily dismissed them without analysis or review. Because a magistrate is not an Article III judge, his incompetence in applying general principals [sic] of law are [sic] extraordinary.

(Footnote omitted.)

These sentences are so poorly written that it is difficult to decipher what the attorneys mean, but any plausible reading is troubling, and the quoted passage is an unjustified and most unprofessional and disrespectful attack on the judicial process in general and the magistrate judge assignment here in particular. This may be a suggestion that Magistrate Judge Stickney is incompetent. It might be an assertion that all federal magistrate judges are incompetent. It could be an allegation that only Article III judges are competent. Or it may only mean that Magistrate Judge Stickney's decisions in this case are incompetent, a proposition that is absurd in light of the correctness of his impressive rulings. Under any of these possible readings, the attorneys' attack on Magistrate Judge Stickney's decisionmaking is reprehensible.[3]

But the court didn’t stop there, it also called out the errors in the appellant’s brief:

Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word “principals” should have been “principles.” The word “vacatur” is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (“incompetence”) and a plural verb (“are”). Magistrate Judge Stickney is referred to as “it” instead of “he” and is called a “magistrate” instead of a “magistrate judge.” And finally, the sentence containing the word “incompetence” makes no sense as a matter of standard English prose, so it is not reasonably possible to understand the thought, if any, that is being conveyed. It is ironic that the term “incompetence” is used here, because the only thing that is incompetent is the passage itself.[4]

Yikes!

Attacking the lower court judge is not just poor advocacy that damages your reputation and your client’s case, it also may subject you to disciplinary action. The Model Rules of Professional Conduct say that “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer . . . .”[5] So, attack the reasoning, not the judge.

 

[1] 647 F.3d 156 (5th Cir. 2011).

[2] Professor Dysart’s post also noted that the decision she discussed was published. Be Accurate in Your Case Citations.

[3] Sanches, 647 F.3d at 172.

[4] Id. at n.13.

[5] ABA Model Rule of Professional Conduct 8.2(a).

And or Or

Statutory construction figures in many appeals. Despite well-known canons that guide courts in interpreting statutes, advocates and courts frequently dispute a written law’s meaning. The overarching principle used in both federal and state courts seeks to read a statute to reflect the intent of the legislature that enacted it. To determine legislative intent, precedent advises that the law’s text, read as a whole, is the best indicia of what the enacting body intended. In taking a textualist approach, courts attempt to read the words of a statute in their ordinary meaning, absent some indication that the words have a technical meaning or are used as terms of art.

When a plain-meaning approach does not resolve ambiguities in the text, courts often resort to legislative history, hoping to derive an answer from hearings, reports, and legislators’ remarks. One example of particular contention is the legislative use of “and” or “or.” The controversy over their usage has given rise to what is called the conjunctive/disjunctive canon. The canon holds, as one might assume, that the use of “and” is conjunctive, which means that the items in a list are joined. The use of “or” is disjunctive, which tells you that the items in a list are alternatives. Yet, nothing is as simple as that might seem to make it because lists can include negatives, plurals, and other phrases that create ambiguities.

In 2018, Congress enacted a criminal justice reform called the “First Step Act.” Among other things, it created criteria that would allow avoidance of mandatory minimum sentences. To apply this safety valve, a court must, in addition to other criteria, find:

        the defendant does not have--

                (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

                (B) a prior 3-point offense, as determined under the sentencing guidelines; and

                (C) a prior 2-point violent offense, as determined under the sentencing guidelines.

In Pulsifer v. United States, decided on March 15, the Supreme Court grappled with what had baffled the circuit courts: must all three conditions be met as signified by the word “and,” or should the “does not have” that introduces the list indicate that A, B, and C are alternative qualifications.

The government argued to the Court that the requirements mean that a defendant with any one of the disqualifying criteria was ineligible for the leniency the law granted, as though it read A or B or C. The defendant arguing the use of and was conjunctive, argued that the law only disqualified a defendant if the record reflected all three at the same time.

A six-member majority sided with the government, but the line-up was a bit unusual. Justice Kagan wrote for a majority that included Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, and Barrett. Justice Gorsuch authored a dissent, joined by Justices Sotomayor and Jackson.

The majority said that there were “two grammatically permissible ways to read” the provision, so that either the government’s or the defendant’s might be plausible. However, grammatical rules alone could not answer the Question Presented, because the language had to be read in context. In other words, reliance simply on the conjunctive/disjunctive canon would be misplaced.

Invoking an example from the children’s book, The Very Hungry Caterpillar, Justice Kagan explained that sometimes in a series is joined by a single verb so when the caterpillar “ate through” a number of food items we understand that each listed food had a hole through which the caterpillar traveled. She then states that when a person says, “I’m not free on Saturday and Sunday,” . . . he most likely means “I’m not free on Saturday and I’m not free on Sunday.” What the person does not mean is that he is only available “one of those days,” but the entire weekend.

However, the inclusion of “does not have” at the top of the list “refers independently to crimes satisfying (1), crimes satisfying (2), and crimes satisfying (3)—not to whatever crimes manage to satisfy (1), (2), and (3) all at once.” Thus, even if Congress could have framed the criteria more clearly, the majority resolved the issue by determining that Congress could not have created an exception that swallowed the rule, but that recognized ineligibility for a more lenient sentence based on the seriousness of the offense. That sensible view, the majority surmised, is reflected in the government’s favored interpretation.

Justice Gorsuch’s lengthy dissent largely applies the conjunctive/disjunctive canon, refusing to rewrite the statute from its plain text where “or” must mean “or.”

Although the decision resolves the meaning of the First Step Act, both sides have provided advocates with ample argument points the next time legislation is less than translucent.

Oral Argument and Proper Preparation

Briefing, rather than oral argument, makes the difference, the common wisdom holds. While an excellent oral argument may not win a case, the assumption is that an exceedingly poor one might lose a case, unsettling what the judges had thought established by the briefs and caselaw. When the briefs establish a powerful case for one side or the other, a prepared court will use oral argument to explore the limits to that argument or the consequences of accepting the principle put forth. Yet, in a rare case, the briefing from both sides may be too good and the relevant precedents may pull equally in opposite directions. In those cases, the decision may rest on the presentation of the argument and the advocates’ responses to questions.

I emphasize “may” in that last sentence because a court may balk at picking between competing lines of precedent, choosing instead a theory that neither party has raised. A classic example of that is Mapp v. Ohio,[1] the  1961 ruling that applied the exclusionary rule for illegally seized evidence to the States.  The case entered the Supreme Court as a First Amendment issue. Police had mistakenly entered Dollree Mapp‘s apartment without a warrant, while searching for a person wanted in connection with a bombing. They apparently had the wrong apartment, mistakenly entering Mapp’s second-floor apartment, when the apartment they sought was on the first floor. When police came up empty on evidence related to the bombing, they continued the search while hoping to find something that would support a criminal charge. Finally, they found a trunk that contained a French sex book and nude sketches. Mapp was charged with possession of obscene materials. Although the case was briefed and argued as a First Amendment case, it left the Court as a landmark Fourth Amendment decision.

Advocates cannot and should not hope that a court will do the work for them. They must provide the judges with the tools that will bring about a favorable ruling. It means being prepared regardless of the direction the case takes. In the short handbook for counsel arguing cases in the Supreme Court that is provided to counsel, there is a telling example of how an advocate should even know his client’s business beyond what the case may involve. The case involved an issue of commercial speech. While arguing that his client had a First Amendment right to indicate the alcohol content of its beer on the label despite a prohibition in government regulations, the late Bruce Ennis was asked by a justice about the difference between beer and ale. Without missing a beat, despite the irrelevant nature of the question, Ennis provided a simple and satisfying answer.[2] Although the answer had nothing to do with the merits or the result, Ennis prevailed[3] – and made a very good impression on the Court for that answer to be included in its guide to advocates.

The need for preparation hit home for me again this past week, when I argued a case involving the constitutionality of a state statute in a state trial court. I had a principal argument in which I had great confidence but was prepared with several different back-up arguments that would achieve the same result if the court did not agree with the approach I opened with. My opponent had moved to dismiss the case, arguing that the plaintiffs were relying on a new, but unconstitutional change to the statute of limitations. The judge was well-prepared and had clearly read the briefs and cases thoroughly. She asked good questions of both of us. While opposing counsel presented his rebuttal, she asked him whether he had an alternative argument if she did not find his primary argument convincing. He seemed surprised that he needed one. It became clear that he had put all his eggs in one basket. After a two-hour morning argument, the judge returned that afternoon to the bench (having warned us she would) and ruled in my favor on my primary argument. Perhaps no backup argument would have derailed that train, but it seems as though at least one should have been advanced. Obviously, the briefs had made the difference, but oral argument could have provided more food for thought and perhaps some doubt about the proper result.

N.B.: a trial judge has an advantage in providing a quick, dispositive ruling that can be announced from the bench, as I experienced in the case described above. Even when there is an appellate panel, the court’s view may be obvious and reflected in a rapidly issued decision. Last year, the Seventh Circuit treated me to one very quick and favorable decision within weeks of the argument, where the court had made its unanimous view very clear. On the other hand, appellate courts can inexplicably drag their feet in deciding cases. This past Friday marked the two-year anniversary of an oral argument in a state intermediate appellate court, where I am still awaiting a decision.

 

[1] 367 U.S. 643 (1961).

[2] Supreme Court of the United States, Guide for Counsel in Cases to be Argued before the Supreme Court of the United States 6-7 (Oct. Term 2023), available at https://www.supremecourt.gov/casehand/Guide%20for%20Counsel%202023.pdf.

[3] Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).

Lessons from the Fani Willis Disqualification Hearing in Fulton County, Georgia

Over the past few weeks, Judge Scott McAfee has presided over a hearing in which former President Donald Trump’s lawyers are seeking to disqualify Fulton County District Attorney Fani Willis and attorney Nathan Wade from prosecuting Trump and his co-defendants for alleged violations of the Racketeer Influenced Corrupt Organizations Act. The hearing provided several lessons for litigators concerning persuasive advocacy.

1.    During direct examination, get to the point quickly and do not focus on irrelevant details.

At times, the direct examinations by some of former President Trump’s lawyers focused on irrelevant details, making the examinations unnecessarily long and reducing their persuasive impact.

In fact, Judge McAfee expressed frustration—and understandably so —with such questioning, particularly on direct examination. For example, during her direct examination of Willis, Ashleigh Merchant, who is an excellent lawyer, often focused on tangential details that detracted attention from the dispositive issues, such as the monthly rent amount that Willis paid to her friend Robin Bryant-Yeartie, whether Willis’s father remained at the house where Willis, for safety reasons, had moved from, and whether Willis’s children had returned to (and presumably resided) at the house after she had left. 

None of these questions had anything to do with the dispositive issues in the case, namely: (1) when the relationship between Willis and Wade began; and (2) whether Willis benefitted financially from hiring Wade as a special prosecutor. This is why Judge McAfee, obviously frustrated, stated, “Ms. Merchant, can we get to the relationship and financial benefit?”

The lesson is simple. Get to the point quickly. Focus on the issues and realize that less is more. Otherwise, you risk losing the judge’s (or jury’s) attention and diminishing the persuasive value of your direct examination. 

2.    Ask concise, direct, and closed-ended questions and organize them to maximize persuasive impact.

On direct and cross-examination, attorneys should ask concise, direct, and, in appropriate instances, closed-ended questions that are straightforward and that produce the testimony you seek to elicit. During the hearing, some of Ashleigh Merchant’s and the other attorneys’ questions were compound, open-ended, and confusing. This allowed Willis both to evade answering certain questions and, alternatively, to offer extensive explanations that had little, if anything, to do with the information that the attorneys sought.

Additionally, a fair amount of the questions that Trump’s lawyers asked were objectionable, causing needless delay and distracting from the relevant issues. And Trump’s lawyers’ responses to several objections, particularly concerning privilege, were unpersuasive. Indeed, the failure to draft a direct examination that is concise, to the point, and non-objectionable undermines the persuasive value of that examination and can, in some instances, negatively impact a lawyer’s credibility. When that happens, the likelihood of success diminishes substantially.

3.    Be prepared, and understand the effort needed to be truly prepared.

Preparation is everything, and in the legal profession, it often takes countless hours to be fully prepared for a hearing or trial. This includes, but is not limited to, researching effectively, knowing the facts and holdings of all relevant case law, having a thorough grasp of the facts, anticipating the adversary’s objections and counterarguments, preparing witnesses, and developing a cohesive and compelling theory of the case. When an attorney is inadequately prepared, it shows and affects the attorney’s credibility and the persuasive value of the attorney’s arguments.

At points during the hearing, some of the attorneys on both sides seemed unprepared. For example, they struggled to locate information in their files, often shuffling through papers or otherwise taking time to find the information needed to substantiate their points, and inquired into privileged information on direct examination. At other times, one or more attorneys appeared to not fully understand the holding of a particular case or, alternatively, slightly mischaracterize a prior court’s holding, which was evident to a degree during the state’s closing argument. 

As stated above, these mistakes can have a substantial, if not decisive, impact on a lawyer’s credibility and a client’s likelihood of succeeding on the merits.

4.    Slow down and articulate clearly.

During the hearing, particularly on direct and cross-examination, a few of the attorneys spoke too fast during direct and cross-examination and struggled to respond effectively to objections (and Judge McAfee’s questions), which affected the quality of their presentation. When attorneys speak too fast, they lose the opportunity to emphasize favorable points and risk confusing a judge or jury. As such, attorneys should strive to speak in a conversational tone, utilize strategic pauses, transition effectively between different topics (i.e., signposting), and where appropriate, use a witness’s answer to frame the next question (i.e., looping). When attorneys speak too quickly, they dilute the impact that favorable testimony will have on a judge or jury. 

This goes to the broader point that much of persuasive advocacy is reflected in the intangible and non-verbal qualities that an attorney brings into the courtroom. It is not sufficient, for example, to draft an outstanding oral argument if that argument is not delivered persuasively. In short, it is not just what you say; it is how you say it.

A textbook example of how to conduct a powerful cross-examination (or direct examination of a hostile witness) was attorney Steve Sadow’s examination of Terrance Bradley, Wade’s former law partner who had represented Wade in a divorce proceeding. Sadow got to the point quickly, asked clear and impossible-to-evade questions, and spoke with confidence and conviction. In so doing, Sadow severely, if not irreparably, damaged Bradley’s credibility.

5.    Maintain your credibility.

At all times, attorneys and witnesses must maintain their credibility. If a judge or jury doubts your credibility, they will disregard your substantive arguments and likely rule in the opponent’s favor.

During her examination by Merchant, Willis sometimes reacted with anger, emotion, and condescension in response to specific questions and sometimes offered superfluous explanations that had no relationship whatsoever to the question being asked. Such a demeanor risks alienating the judge (or jury) and losing whatever sympathy that you could have engendered through your testimony.

Most importantly, attorneys and witnesses must always be honest with the court. During the hearing, Trump’s attorneys called Bradley to the stand. Several weeks before the hearing, Bradley, for reasons that only he can know, had been texting Merchant about when the relationship between Willis and Wade began (Willis and Wade claimed that it began in 2022, after Willis hired Wade as a special prosecutor). In these text messages, Bradley responded “Absolutely” when Merchant asked him if the relationship began before 2022 and even volunteered specific details indicating that the relationship began in 2019 after Willis and Wade met at a continuing legal education seminar. When Bradley was called to the stand, however, he conveniently forgot—or did not recall—much of the information that he had conveyed to Merchant. When pressed, Bradley claimed that he was merely “speculating” about the beginning of the relationship (despite previously providing specific details to Merchant) and that he had no basis whatsoever to support this “speculation.” It should go without saying that Bradley had absolutely no credibility and, as such, severely undermined Willis’s and Wade’s claims regarding when their relationship began.

Maintaining credibility requires, among other things, that you keep your composure in the courtroom, control your emotions, refrain from making meritless objections, and tell the truth. 

6.    Do not make too many objections and avoid meritless objections.

Objections are a vital part of any hearing or trial, as attorneys must ensure that questions on direct and cross-examination comport with the rules of evidence. But sometimes, attorneys can make too many objections and, in so doing, damage their credibility.

This was evident during Trump’s lawyers' examinations of Terrance Bradley. After what seemed like every question, the attorneys for the state objected on various grounds, such as that the question was asked and answered, not relevant, and privileged. It was clear, however, that the questions Merchant and the other attorneys, such as Sadow, posed to Bradley were within the purview of Judge McAfee’s order allowing Trump’s attorneys to question Bradley about when Willis’s and Wade’s relationship began, despite prior claims of attorney-client privilege. Notwithstanding, the state’s attorneys continued to make questionable objections despite being repeatedly overruled, and Judge McAfee appeared quite frustrated.

The problem with this should be obvious: too many objections, particularly when they lack serious merit, undermine your credibility. It also suggests that you have something to hide, namely, that the damaging information the adversary seeks is, in fact, true. This is not to say, of course, that attorneys should not object frequently when the adversary consistently asks objectionable questions. It is to say that attorneys should not object when the basis for that objection is meritless and the likelihood of a judge sustaining it is minimal.

***

The above discussion is not meant to unduly criticize the attorneys or the parties in this case. They are exceptionally talented lawyers and, at many points during the hearing, they advocated admirably and persuasively on behalf of their clients. Furthermore, Judge McAfee showed that he is an outstanding judge who has impeccable knowledge of the law and rules of evidence and who is balanced, reasonable, and fair. Judge McAfee is certainly a jurist who represents the best of the legal profession.

Regardless of whether Judge McAfee disqualifies Willis, these hearings demonstrate the importance of exercising good judgment, being honest with the court and the public and, when prosecuting a former president, adhering to the highest ethical standards.

Lessons in Advocacy from the Trump v. Anderson Oral Argument

Oral argument in Trump v. Anderson, the ballot eligibility case from Colorado pending in the Supreme Court, received enormous public attention – as well as attention from other contributors to this blog. Regardless of what you think of the merits of the case (I filed an amicus brief on behalf of Professor Kermit Roosevelt of the University of Pennsylvania Law School that I will describe at the end of this post), the pre-argument assessment of the University of Texas law professor Steven Vladeck seemed accurate: constitutional law was likely to give way to constitutional politics. In this post, however, I want to focus on the oral argument. Despite how well the advocates did on many levels, the difficulty of the case and the predisposition of the justices made some responses surprisingly insufficient.

Former President Trump’s counsel, Jonathan Mitchell, benefited from a heavy dose of softball questions – and little follow up as it became obvious early on that he would prevail, even if not on any ground he argued. He had chosen to rely heavily on the argument that the presidency is not an office subject to disqualification under the Fourteenth Amendment. Justice Kagan prefaced one question by declaring that she could think of many good reasons why those who wrote Section 3 would want to cover the presidency, but wanted to know what rationale would support exclusion of it as a policy choice.

Mitchell’s response admitted that no good rationale exists to exclude the presidency but that the language probably represented some unknown compromise. He added, “In a compromise, everyone goes away miserable,” but that we have to follow the text, which he claims supports his view.

That response seems wholly unsatisfactory, built, as it is, on speculation that deserves no credit. As Mitchell otherwise conceded, “one would think, of all offices, the presidency would be the one you’d want to keep out the Confederate insurrectionists. That’s the commander-in-chief of the Army.” Amicus briefs from history scholars established that the presidency was covered – and that no one supported a different view. Yet, Mitchell’s shrugging response got no pushback or further exploration by any justice. For a majority on the Court that usually insists on original public meaning, Mitchell’s explanation should have sounded hollow. The justices were similarly uninterested in diving deeper into the claim that it was impossible to assign a meaning to the term “insurrection.”

Jason Murray, who represented the voters who sought to knock Trump off the ballot in Colorado, faced a hostile bench. It is always difficult to respond to a Court set on reaching a result contrary to your position, even when the judges struggle to find a common rationale. Yet, one premise behind questions raised by Justice Kagan and Chief Justice Roberts required a response, where none was given. Both members of the Court stated as a fact that it would seem odd that the Fourteenth Amendment, intended to restrict the States, would empower a State to disqualify a presidential candidate, which then led them to raise difficult questions about state authority, which provides the most likely ground for reversal.

Murray did not challenge the underlying premise of their questions, however – and he should have. Certainly, to the extent that the Fourteenth Amendment imposed the privileges and immunities of national citizenship on States, required them to observe equal protection and due process, and, eventually, comport their actions with the Bill of Rights, the Fourteenth Amendment can be seen as restricting on State authority. However, at the same time, the Amendment empowered the state courts to enforce those same rights. A state court does not require congressional approval before it finds that a law or government action, federal or state, violates equal protection or due process. Why would that expectation be any different for any other part of the Fourteenth Amendment, including its disqualification clause? The Constitution always expected state judges and state courts to abide by the supreme law of the land and enforce its requirements. The extension of rights in the Fourteenth Amendment also necessarily empowered state courts to enforce it.

Moreover, as amorphous as the concept of due process remains after centuries of precedent stretching back to Magna Carta, why would state courts have any greater difficulty interpreting “insurrection” and applying it without congressional guidance. Yet, if congressional guidance was needed to assist with determining whether January 6 and Trump’s role in it amounted to insurrection, ample expression of congressional thinking, both at the time of the Fourteenth Amendment’s ratification and today, exist. Briefs detailed the legislative history of the provision. And the January 6 Committee report was evidence in the trial on that score in a Colorado courtroom. Finally, a majority of Congress found that Trump’s actions on January 6 constituted an impeachable offense, even if the 57 Senators who voted that way were short of the two-thirds necessary for removal from office. Since only a majority is needed for the type of legislative guidance, which Mitchell told the Court was necessary as a result of Griffin’s Case, that majority, specific to the question in this case, existed, having heard evidence more comprehensively than when legislation is usually considered.

I have no illusions that this type of pushback would likely change the result. Much of it existed in the amicus briefs filed. Instead, simply as a matter of appellate advocacy, it seems important to make points like that in response to a court’s assumptions. It may have no effect, but it also could create some hesitation on the part of the Court to make sweeping but erroneous declarations in the opinion that is issued and create a precedent for what is too facile a reading of the Constitution.

N.B.: The amicus brief I filed largely addressed two issues. First, that the debate over whether Section 3 is self-executing misunderstands the inquiry. The Constitution and the Fourteenth Amendment sets standards to be implemented. No State shall deny equal protection or due process, for example. And no person who has taken an oath to support the Constitution (which logically includes those who took an oath to “preserve, protect and defend” the Constitution) and has engaged in insurrection shall hold office. The next question, then, is not whether Congress, which cannot enhance or diminish the Constitution’s command, puts it into effect, but whether a mechanism exists to bring an alleged violation before a court of law. Colorado election law provides such a mechanism, according standing to voters like the plaintiffs in this case.

Second, the brief addressed misunderstandings about Griffin’s Case. The case, in which Chief Justice Salmon Chase wrote the opinion while riding circuit, addressed whether a judge, who had served in the Confederacy and should not hold office under Section 3, could issue a valid criminal conviction and sentence. Chase’s narrow decision found that such a collateral attack on the judge’s authority could not be mounted in this case involving a manslaughter charge without congressional authorization. It did not suggest state law would suffice, likely because the case arose in Virginia which, at the time, had “no legal state government[]” under the First Reconstruction Act. Moreover, as was noted at oral argument and in other briefs, the framers of the Fourteenth Amendment, as well as Chase, agreed that Jefferson Davis was disqualified without congressional action from public office, including the presidency. Congress believed so too, because it was argued that the Amnesty Act of 1872 was flawed because its removal of disqualifications would allow a party to nominate Davis to the presidency or vice presidency.

Moreover, claims made during the oral argument that Griffin’s Case served as the basis for the Enforcement Act of 1870 ignore that the Act was drafted before the decision in the case and that key provisions were reenacted from an 1862 Act that predated the case, thereby undermining Mitchell’s claim that the 1870 Act created statutory preemption for State enforcement (even though it was repealed in 1948).

Still, with the decision seemingly preordained, my hope is that whatever opinion is issued does not fracture the history or establish background principles that like early interpretations of the Fourteenth Amendment skew its construction in ways that creates problems in the future.

Allowing Inexperienced and Minority Attorneys More Oral Argument Time

When I was an experienced associate at a large appellate boutique, and then of counsel in a large law firm’s appellate department, attorneys at my level often offered trial court motion arguments and non-appellate brief writing to junior attorneys who were hungry for experience.  While our offers were not always completely altruistic—like when we offered “interesting” emergency weekend writs to others—we were genuinely invested in helping junior attorneys gain needed experience to better serve our clients.

In 2020, three U.S. District Judges for the Southern District of Illinois, Judge Nancy Rosenstengel, Judge Staci Yandle, and Judge David Dugan, issued orders encouraging the participation of "newer, female, and minority attorneys" in oral arguments.  As Reuters reported, under the orders, “parties can alert the judges if they intend to have a less-experienced, female, or minority attorney argue a motion.”  See Nate Raymond, Republican US Senators Seek Info on Illinois Judges' Diversity Policies, Reuters (Feb. 8, 2024).   The “judges in turn ‘strongly consider’ giving extra time for oral argument and allowing more experienced attorneys to provide the newer” counsel assistance.  Id. 

Last week, Reuters, Bloomberg Law, and Law360 all reported that a conservative legal group and two Republican U.S. Senators recently complained about the three judges’ efforts.  See Raymond, Republican US senators; Suzanne Monyak,

Courtroom Diversity Orders From 2020 Probed by GOP Senators, Bloomberg Law (Feb. 9, 2024); Courtney Buble, GOP Sens. Blast Ill. Judges' Moves For Diversity In Oral Args, Law360 (Feb. 7, 2024).  According to Stephen Miller’s organization, America First Legal, the three Southern District of Illinois judges committed misconduct by discriminating based on race and sex in the standing orders.  Here is America First Legal’s misconduct complaint to the Seventh Circuit.  Following the America First Legal complaint, two Senators on the Senate Judiciary Committee, Senators Cruz and Kennedy, wrote to the Chief Judge of the Seventh Circuit asking for more information about the standing orders.  Their letter is here.  The gist of both communications is that the three judges’ standing orders give an illegal preference through a facially discriminatory policy. 

As we wait for the Seventh Circuit to weigh in on the First America Legal complaint and the letter from the Senators, we might see other similar policies challenged.  For the past six years, the American Bar Association “has urged courts to implement plans to give new lawyers courtroom experience,” and in 2023 “passed a resolution calling on courts to allow two attorneys to argue for each client to foster that goal.”  Raymond, Republican US Senators.  Most court rules following the ABA’s resolution are facially neutral, but not all.  See generally Buble, GOP Sens. 

Whatever the fate of the three Southern District standing orders, experienced lawyers should  work to be stronger mentors.  We can offer argument and writing time to junior attorneys and underrepresented minorities whenever it’s possible to do so while still serving clients’ needs.  In this way, we’ll help the profession, and we might avoid some of those weekend emergency writ-drafting sessions at the same time. 

NOW, how well can ChatGPT prepare me for oral argument?

Back in March 2023, when generative AI was relatively new and we were all deciding whether to celebrate human ingenuity or engage in apocalyptic panic, I wrote a post asking if ChatGPT could prepare me for oral argument.  I thought it would be interesting to write a follow-up now (close to a year later) to see how the technology has progressed and whether its skills in moot court have improved.  TLDR:  it’s even better.

In my first post, I used the free version of ChatGPT, which was then version Legacy 3.5.  Since then, I’ve signed up for the paid version, ChatGPT-4, as well as the free version of Claude, the generative AI tool from Anthropic.

A feature that both ChatGPT-4 and Claude have that earlier generative AI tools lacked is the ability to upload documents.  This means that an advocate can directly upload briefs before engaging with the AI, which cuts down significantly on the number of prompts needed to get the AI up to speed on the facts, legal issues, arguments, and authorities.

For purposes of this post, I uploaded a single brief (on the same topic as in my previous post)[i] to both AI tools and entered the same prompts in each.  I told them both, “you are an appellate court judge. I am the attorney arguing on behalf of the position represented in the attached brief. Ask me questions.”[ii]

Both ChatGPT-4 and Claude responded with a list of questions, rather than engaging in a back-and-forth discussion.  So I prompted them further with “please ask me one question at a time and then ask follow-up questions for each of my answers.” 

Both tools began with the first question in their list of questions, waited for my response, and then asked more probing follow-up questions.

Here’s my exchange with ChatGPT-4:

ChatGPT

Certainly. Let's start with the first question:

Viewpoint Neutrality: Your brief asserts that the Bielefeld Public Advertising Guidelines are viewpoint neutral. Could you elaborate on how the Guidelines maintain viewpoint neutrality, especially considering they prohibit religious advertisements?

Me

the guidelines prohibit the content of religion, rather than a viewpoint. it is irrelevant whether the advertisement supports or opposes religion. if the content involves religion, it is barred. therefore, the guideline is viewpoint neutral.

ChatGPT

Thank you for your response. A follow-up question on that point:

Given that the Guidelines prohibit content involving religion, how do you address concerns that such a prohibition might inherently favor secular viewpoints over religious ones? In other words, how do you reconcile the argument of viewpoint neutrality with the potential perception that secular views are being preferred or given more space in the public discourse?

I was surprised at how probing the follow-up question was.  But I was even more surprised at how similar the follow-up question from Claude was to the follow-up from ChatGPT-4.  Here’s my exchange with Claude:

Claude

Understood, let's take this one question at a time. Here is my first question:

The brief argues that religion can be banned on a content basis in a nonpublic forum. However, doesn't banning religious content target particular viewpoints? How is this viewpoint neutral?

Me

the guidelines prohibit the content of religion, rather than a viewpoint. it is irrelevant whether the advertisement supports or opposes religion. if the content involves religion, it is barred. therefore, the guideline is viewpoint neutral.

Claude

I understand the argument that the guidelines target religious content, not viewpoints on religion specifically. However, by allowing secular content while prohibiting religious content, doesn't that show favoritism towards the secular perspective? How can prohibiting religious content altogether be considered viewpoint neutral?

Both AI tools sound significantly more like appellate judges now than they did back in March 2023.  And it is much easier to engage in a discussion of the legal issues now.  As for distinctions between the two, I found Claude to be more helpful with the follow-up questions.  After a single follow-up, ChatGPT-4 moved on to the next question on its list, but Claude continued to probe my response:

Me

again, it's not about the viewpoint or advocacy or opposition to specific religious beliefs or the absence thereof. it's about religion as a topic. if an advertisement were submitted for an educational speaker teaching about world religions, that advertisement would be prohibited based on its content of religion, even though the speaker is presumably providing information and not advocating.

Claude

I see, so the key distinction here is that the guidelines prohibit religion as a subject matter or topic, not specifically viewpoints that support or oppose religious beliefs. Is that correct?

If so, I still have concerns that singling out religion as a prohibited topic is not actually viewpoint neutral in effect. By allowing secular topics but disallowing topics involving religion, it privileges the secular perspective by default. Why should religion be singled out as a prohibited subject matter when other topics like politics or ideological causes are not? What is the principled distinction there?

This is a far cry from the “Yes-Man” responses I received from ChatGPT in March 2023.  I continued my discussion with Claude to see how long it would stay on a single topic, and it lasted one more question but sounded remarkably like an appellate judge by agreeing to move on, yet reserving some (well-deserved) skepticism of my response:

Me

the guidelines likewise prohibit political advertisements. the primary distinction is that one can discuss religion as a subject matter without expressing a viewpoint as in my previous example; whereas advertisements discussing ideological causes will nearly always espouse a viewpoint of some kind

Claude

Okay, that explanation helps provide more context. So the guidelines prohibit both religious and political subject matter because those topics are seen as more inherently advocacy-based rather than neutral subject matter. Is that a fair characterization?

If so, I think I better understand the argument now that religion and politics can be prohibited subject matters in themselves regardless of specific viewpoints, while other secular topics would not necessarily have that inherent advocacy component.

I still wonder if there could be secular ideological causes that would seem advocacy-based similar to religions belief systems, but let me move to my next question area...

It was only after I agreed to move on that Claude began a discussion of the next topic.

In my previous post, I asked ChatGPT to summarize some of the key cases.  And, as we’ve seen many times over the past year, it hallucinated.  In one of the main cases, Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, 897 F.3d 314 (D.C. Cir. 2018), ChatGPT-3 insisted the outcome was exactly the opposite of the outcome in reality.  When I asked both tools to summarize the Archdiocese case this time, their answers varied.  Claude was unable to independently tell me anything about the case, though it encouraged me to upload the opinion directly for it to summarize.  ChatGPT-4, however, used a plugin to search the internet to summarize the case.  What was interesting here is that the source of its information was law.cornell.edu, which contained a post of Justice Gorsuch’s statement on the denial of certiorari to the D.C. Circuit’s opinion.[iii]  Thus, the information ChatGPT-4 provided came from that statement, rather than the D.C. Circuit opinion.  But it was still more accurate than its previous hallucination.

I concluded by asking both tools to use the uploaded brief to create an outline for oral argument.  As before, both tools excelled at this task, though Claude presented a more argumentative version of the outline.

ChatGPT-4:

Here is an outline for your oral argument based on the brief for "The City of Bielefeld v. The Mustard Seed":

1. Introduction

• Briefly introduce the case and state your position supporting the City of Bielefeld.

2. Argument Overview

• Outline the main arguments: A. The Fourteenth Circuit erred in its decision. B. The city's guidelines on advertising in public buses are lawful and constitutional.

3. Forum Analysis

• Argue that the bus advertisement space is a nonpublic forum.
• Discuss relevant cases (e.g., Lehman v. City of Shaker Heights) that support this classification.

4. Content-Based Restrictions in a Nonpublic Forum

• Explain why religion can be banned on a content basis in a nonpublic forum.
• Distinguish between content-based and viewpoint-based restrictions.

5. Reasonableness and Consistency of Guidelines

• Argue that the city’s guidelines are reasonable and have been consistently applied.
• Address how the guidelines serve the city's interests without unconstitutionally restricting free speech.

6. Relevance of Archdiocese Case

• Discuss the relevance of the Archdiocese of Washington v. Washington Metropolitan Area Transit Authority case and how it supports your argument.

7. Conclusion

• Summarize the key points.
• Urge the court to reverse the Fourteenth Circuit’s judgment.

Remember, the success of your oral argument depends on how well you can articulate these points and respond to any questions or counterarguments from the judges.

Claude:

Here is an outline for your oral argument based on the legal brief provided:

I.  The city's advertising restrictions should be upheld as constitutional

A. The advertising spaces are a nonpublic forum where restrictions are allowed if reasonable and consistently applied

i. Case law establishes transit advertising spaces as nonpublic forums

ii. Governments can restrict content in these types of forums if restrictions are reasonable and consistently applied

B. Banning religious content is permissible in a nonpublic forum

i.  Religion is a subject matter, not just a viewpoint

ii.  Case law says governments can prohibit religious subject matter in nonpublic forums

C. Bielefeld's restrictions were reasonable and consistently applied

i.  Restrictions reasonably advanced objectives like public safety and reliable transit

ii.  Restrictions consistently barred any ads with religious content

II. The Mustard Seed is unlikely to succeed on the merits

A. Their argument depends on treating religion as only a viewpoint

i. But case law says religious subject matter can be prohibited

B. Their consistency argument fails

i.  Secular ads permitted did not contain religious viewpoints or subject matter

C. Restrictions were reasonable and consistently applied to advance forum purposes

III.  Conclusion: Preliminary injunction should not have been granted

A.  No First Amendment violation shown

B.  Mustard Seed unlikely to succeed on merits

Let me know if you need any clarification or have suggestions for improving this oral argument outline based on the briefing. I focused on the key arguments as to why the restrictions should be upheld as constitutional.

In short, generative AI tools have come a long way in a very short time.  And neither ChatGPT nor Claude were designed for law-practice usage.  I can only imagine where the new law-based tools will take us.

 

[i] The problem, from my first-year Advocacy & Research course, involved both facial and as-applied First Amendment challenges to a municipality’s advertising guideline that barred religious content on its public transit system.

[ii] My responses to the AI were designed simply to test its engagement with the subject and do not represent how I would actually argue this case.

[iii] https://www.law.cornell.edu/supremecourt/text/18-1455

Political Debates and Oral Advocacy: Differences and Similarities

Watching the past week’s Republican presidential candidate debate and its subsequent press coverage caused me to reflect on the differences between that type of political debate and appellate oral argument. Some of the differences are obvious.

In political debate, candidates are free to ignore the question posed to them and discuss something entirely different, make baseless claims without fear that it will adversely affect the decision they seek, and treat the time limits as advisory. They may also get an off-the-wall question, like when former New Jersey Governor Chris Christie fielded a question on alien life and UFOs.

Now, imagine the appellate advocate doing the same things or facing a similar set of questions. It is hard to do. Judges are usually well informed about an advocate’s position. They have read the briefs, reviewed underlying authorities, and expect answers to their questions. Because advocates are hoping to win over the judges themselves, rather than an unseen audience of the public, they must be both more respectful of their inquisitors and more concerned that their answer provides the grist that the judge seeks. They must also be highly accurate, both about the record and about the precedents they cite. Credibility is the coin of the realm for an advocate, and real-time correction of a false assertion can occur. In one of my arguments, my opponent made the same claim orally as he did in his opening brief about the record, which I had rebutted in my response. The judges were all over him as soon as the error was uttered. By the time he was able to return to his argument, the judges appeared unwilling to listen to his additional points.

Also, unlike in politics where differentiating yourself from your co-debaters may encourage it, oral advocates cannot engage in theatrical stunts. It will not play to the decision-makers that matter in a court of law.

On the other hand, there are similarities in some aspects of effective political debate and oral advocacy. Telling a succinct story can be tremendously effective in both forums. That is why politicians will often turn their biography into a compelling narrative. It memorably makes a connection with their audience that is essential. Advocates also find storytelling an important skill. Whether it is fashioning the record into a powerfully sympathetic description of what is at issue or presenting precedents so that they inexorably lead to the preferred result, advocates seek to tell a story that strikes a responsive chord in their panels.

Both debaters and advocates must be skilled in transitioning from questions to other important points. A minor issue on the debate stage should not take up important time, so a skilled politician must be capable of answering succinctly and use the remaining time to raise a more important point that might otherwise go undiscussed. Similarly, an advocate who can dispose of a simple question quickly can return to the one or two points that may be more critical to discuss.

Candidates and advocates both also seek to show why their opponent is wrong. It can be that the policy/result their opponent seeks makes little sense, conflicts with successful positions/prior precedent that experience supports, or fails to address the real underlying issue. And, it helps in both forums to have a winning personality and pleasant demeanor. Just as a politician who comes off as dour wins few votes, an advocate who treats every question with hostility rarely comes off well. Unpleasantness, though, may not lose a case, even if it could lose a political vote. When I worked at a court, I recall hearing one judge comment after an oral argument where the advocate “admonished” the judges that the lawyer had hurt herself. In the end, that advocate won a unanimous decision. I never understood how she hurt herself. Perhaps the decision was written more narrowly than the judges were otherwise inclined to do.

Yet, despite these similarities and skills that can prove effective in both forums, appellate advocacy is a less wide-open and emotional endeavor than political debate. And the best oral advocates understand that.

Legal Communication and Rhetoric: JALWD Turns 20

The journal, Legal Communication and Rhetoric: JALWD, (formerly the Journal of the Association of Legal Writing Directors) will publish its twentieth volume this year. The journal has this mission statement:

The journal is dedicated to encouraging and publishing scholarship (1) focusing on the substance and doctrine of legal writing. Legal writing is broadly defined to include many types of writing in a lawyering setting; (2) grounded in legal doctrine, empirical research, or interdisciplinary theory; and (3) accessible, helpful and interesting to all “do-ers” of legal writing: attorneys, judges, law students, and legal academicians. Published articles are intended to reach all of those audiences.[1]

The journal regularly includes articles that appellate practitioners will found helpful and it publishes articles written by practitioners as well as academics. Here are just a few examples:

• Raffi Melkonian, Thoughts and Worries About Appellate Practice Post-Pandemic, 19 Legal Commc’n & Rhetoric 129 (2022)
• Stephen Boscolo, Using Judicial Motives to Persuade Judges: A Dramatistic Analysis of the Petitioners’ Brief in Lawrence v. Texas, 17 Legal Commc’n & Rhetoric 103 (2020)
• Scott Fraley, A Primer on Essential Classical Rhetoric for Practicing Attorneys, 14 Legal Commc’n & Rhetoric 99 (2017)
• Barbara K. Gotthelf, The Lawyer’s Guide to Um, 11 Legal Commc’n & Rhetoric 1 (2014)
• Stacy Rogers Sharp, Crafting Responses to Counterarguments: Learning from the Swing-Vote Cases, 10 Legal Commc’n & Rhetoric 201 (2013)
• Scott Fraley, A Primer on Essential Classical Rhetoric for Practicing Attorneys, 14 Legal Commc’n & Rhetoric 99 (2017)

You’ll find a complete archive of the journal here Legal Communication & Rhetoric: JALWD

 

[1] https://www.alwd.org/aboutlcr

Demeanor in the virtual courtroom

The United States Supreme Court provides counsel with a "Guide for Counsel in Cases to be Argued Before the Supreme Court of the United States." In that guide, counsel can learn how they should dress (conservative business dress in traditional dark colors), where they should sit, how they should move to and from those seats, how they should address the justices ("justice," and never "judge"), and so on. Similarly, in moot court, there is a category on most ballots labeled "courtroom demeanor," where fledgling appellate advocates are judged in how they comport themselves in court.

In the trial world, counsel is often reminded that the jury is always watching. Anecdotes abound. One attorney, who represented a car manufacturer at trial, was seen driving a car manufactured by another company. The jury decided he did not believe in his client and penalized him at trial. Another attorney told the jury in voir dire about his wife and family. The jury noted he was not wearing a wedding ring, and decided he was a liar. Eye rolls, sighs, and disrespect shown in a multitude of ways are blamed for countless lost cases.

But for some reason, when appearing virtually, many lawyers forget that demeanor matters. At one recent matter, I saw opposing counsel sighing, rolling eyes, getting up, getting snacks and water, and laughing with staff, all on camera, and all while opposing counsel, witnesses, and even the judge were speaking.

I get it. Having a camera on you for hours desensitizes you to the technology. If you don't have your camera shown, in particular, you can quickly forget that you are seen. But most counsel I know use "gallery view" in their zoom or other virtual software, as do most judges, so that not just the speaker is shown. And just like in the real courtroom, your behavior on that screen matters.

Credibility is the coin of persuasion. Why waste that credibility by acting poorly on screen? And while the behavior I described above was at a hearing, I have seen similar behavior during oral argument, when the justices are going to go back into chambers (virtually, perhaps, or in person), where you should hope they will discuss the merits of your argument, and not the content of your character writ large on their screens.

So please, even when appearing virtually, remember that demeanor matters. And don't forget to wear your conservative business dress in traditional dark colors.

(image credit: Image created in Bing Image Center, Powered by DALL-E AI image generator, using the prompt "attorneys behaving badly at counsel table, in the style of Thomas Nast.")

Why Paul Clement Is So Good

Attorney Paul Clement is among the best attorneys – and oral advocates – in the United States. And for good reason. His oral advocacy skills are second to none. In fact, listening to even one of Paul Clement’s arguments before the United States Supreme Court provides law students and young lawyers with invaluable tips on what it takes to be an outstanding advocate. Below are a few reasons why Paul Clement is among the country’s best lawyers.

1.    Confidence

As Woody Allen said, 90% of life is just showing up. And when you do show up, it’s critical to have confidence. Paul Clement has the confidence (or ‘swagger’) that reflects self-assuredness and conviction in his arguments. Put simply, he owns the courtroom and commands respect.

2.    Preparation

No attorney can outwork Paul Clement. He is so prepared that he never uses notes and can cite the page and line number of, for example, a deposition. In short, Clement knows every detail of his case, including the law that governs its disposition.

3.    Conversational tone

Many lawyers who argue before the United Supreme Court will understandably be nervous and, perhaps, overly formalistic when making their arguments.

Not Paul Clement. When Clement argues before the Supreme Court, he has a conversation with the Court, much like you would have a conversation with one of your friends. As Professor Richard Lazarus of Harvard Law School states, “[h]e’s very smooth. He’s engaging. Formal but not too much so. Extremely credible and straight with the justices. You don’t have the sense that anyone is trying to sell you anything.”[1]

It almost seems that Clement enjoys engaging with the justices, which reflects his confidence and personability.

4.    Integrity and credibility

Paul Clement has integrity. He never misrepresents the law or the facts. He never acts in an arrogant, disrespectful, or dismissive manner. Rather, he presents the law and facts honestly and thoroughly, and explains with persuasiveness why he should win. Doing so reflects his integrity and enhances his credibility with the Court.

As one Supreme Court advocate stated, “[h]e just doesn’t do things that upset people … [t]here’s no edge to him.”[2]

5.    Persuasiveness

Paul Clement is extremely persuasive. Whether it is, for example, his tone, word choice, ability to distinguish precedent, skill at addressing unfavorable facts and crafting a compelling narrative, or using non-verbal techniques, Paul Clement is among the most talented at telling a persuasive story that maximizes his likelihood of success.

6.    Answering judges’ questions directly and effectively

One of the most important aspects of effective appellate advocacy is answering a judge’s questions directly and persuasively, and adjusting your argument based on the concerns that a judge expresses about the merits of your case. Paul Clement is among the best, if not the best, at doing so.  An excellent example is Clement’s argument in Kennedy v. Bremerton School District (21-418_3dq3.pdf (supremecourt.gov)).

Ultimately, Paul Clement’s oral advocacy skills exemplify what it means to be a great lawyer and advocate. Both law students and young law lawyers would benefit from listening to his oral arguments. 

 

[1] Natalie Singer, ‘Defending Unpopular Positions is What Lawyers Do,’ says Paul Clement, ’92 (January 31, 2012), available at: 'Defending unpopular positions is what lawyers do' says Paul Clement '92 - Harvard Law School | Harvard Law School

[2] Jason Zengerle, The Paul Clement Court (March 16, 2012), available at: Why Paul Clement Is the GOP’s Great Hope for This Supreme Court Season -- New York Magazine - Nymag