Appellate Advocacy Blog

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

Monday, March 25, 2024

Be accurate in your case citations

Last weekend I gave a talk on appellate advocacy to a group of law students interested in public interest work. It was a great crowd. As a former public interest lawyer, it was especially interesting to think about what I might say differently about appellate advocacy to students interested in public interest work.

One point that I didn't change in my standard advocacy talk was Tip #5--Be Professional. When I talk to attorneys and students about professionalism and appellate advocacy I tend to emphasize two points. First, I talk about the importance of being accurate in how you represent cases and the record.  When we surveyed judges for Winning on Appeal, we found that complaints about the misstating the law or the record was probably the second most common complaint that judges had about brief writing (the first being that briefs are too long). The second point I emphasize is the importance of not attacking the judge below or opposing counsel.

As I sat in my hotel room doing my final prep before my talk, I received an email from a legal writing professors listserv that provided me with a prime example on this point. Just a few days ago the Ninth Circuit issued an opinion dismissing an appeal and striking a brief because the appellant's brief "represent[] a material failure to comply with [the court's] rules." Ouch. The primary problem with the brief was that it fabricated caselaw and cited cases that did not stand for the propositions for which they were cited. From the opinion:

Here, Appellants filed an opening brief replete with misrepresentations and fabricated case law. For example, the brief states that Hydrick v. Hunter, 669 F.3d 937 (9th Cir. 2012), “examined a claim of false imprisonment brought by a parent whose child was unlawfully removed from the home by government officials.” Hydrick, however, discusses no such claim. The case instead concerns a conditions of confinement claim brought by a class of persons civilly committed under California’s Sexually Violent Predator Act. Id. The words “parent” and “child” appear nowhere in the opinion. Similarly, Appellants’ brief states that Wall v. County of Orange, 364 F.3d 1107 (9th Cir. 2004), “addressed intentional infliction of emotional distress claims against police officers who unlawfully removed a child from her parent.” Wall instead concerns allegations of excessive force, false arrest, and false imprisonment brought by a dentist who was arrested after an altercation at an auto shop. Id at 1110–12. The words “parent” and “child” are, once again, absent from the opinion. Beyond Hydrick and Wall, Appellants also misrepresent the facts and holdings of numerous other cases cited in the brief. See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Yvonne L. v. N.M. Dep’t of Hum. Servs., 959 F.2d 883 (10th Cir. 1992); Smith v. City of Fontana, 818 F.2d 1411 (9th Cir. 1987); Wilkins v. City of Oakland, 350 F.3d 949 (9th Cir. 2003); Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997); Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011); Henderson v. City of Simi Valley, 305 F.3d 1052 (9th Cir. 2002); Johnson v. City of Seattle, 474 F.3d 634 (9th Cir. 2007); Brooks v. City of Seattle, 599 F.3d 1018 (9th Cir. 2010); Devereaux v. Perez, 218 F.3d 1045 (9th Cir. 2000); Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000). 

It gets worse. The Court issued a focus order before argument asking the parties to discuss two cases that were cited in the brief but did not appear to exist. At oral argument, "[c]ounsel . . . did not acknowledge the fabrications" and failed to provide other "meaningful support for Appellants' claims." The opinion even includes a colloquy with the court on these issues. It isn't great for the attorney. 

As I pointed out to the students, this is bad. Things like this ruin your reputation with the court and the judges for your entire career. In fact, the court was so upset by the attorney's actions that it PUBLISHED the opinion. Yes, it published it.

So, let this be a lesson to be accurate in your case citations. Your reputation depends on it.

(Thanks to Cory Webster for sharing the opinion and Prof. Sarah Ricks for disseminating it on the listserv).

March 25, 2024 | Permalink | Comments (0)

Sunday, March 24, 2024

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.

March 24, 2024 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Writing, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, March 18, 2024

Journal of Appellate Practice and Process V.24 Issue 1 Now Online

I am thrilled (relieved) to announce that volume 24, issue 1 of the Journal of Appellate Practice and Process is now online.  We have had several hiccups in finalizing this issue, not the least of which was a new publishing company, but we made it!

Our Journal team is working diligently on the next issue, and I am accepting articles for volume 25.  I have pasted the full list of pieces in the current issue below.

The Journal of Appellate Practice and Process – Winter 2024 Issue Now Available

The Winter 2024 issue of The Journal of Appellate Practice and Process (Volume 24, Issue 1) is now available. It features the following pieces:

March 18, 2024 | Permalink | Comments (0)

Sunday, March 17, 2024

A Few Thoughts on Judge McAfee's Decision

On March 15, 2024, Judge Scott McAfee denied the defendants’ motion to disqualify Fulton County District Attorney Fani Willis from the case involving the prosecution of former President Donald Trump and other defendants.

Below are a few observations from Judge McAfee’s decision and the hearing.

1.    Judge McAfee should have disqualified Willis.

Given the facts and evidence, Willis should have been disqualified. Her conduct demonstrated an actual conflict of interest and the appearance of a conflict of interest.

First, on January 14, 2024, Willis gave a speech at an Atlanta church that all but accused Trump’s and the other defendants’ lawyers of racism – stating they would play the “race card” – and, in so doing, showed an alarming lack of judgment.[1] Although not mentioning the defense attorneys by name, it was clear who Willis was targeting, and her comments, which could taint the jury pool, were inappropriate and unethical.  It should come as no surprise that Judge McAfee suggested that a gag order may ultimately be necessary to ensure that such conduct does not occur again.[2]

Second, Willis and Wade likely provided untruthful testimony on the witness stand when they stated that their romantic relationship began in 2022. To begin with, Willis’s former friend Robyn Yeartie testified under oath that the relationship began in 2019, which was before Willis hired Wade as a special prosecutor. Additionally, Wade’s former attorney and law partner, Terrence Bradley, exchanged text messages in January 2024 with Ashleigh Merchant, one of the defendants’ attorneys, in which he responded “absolutely,” when Merchant asked him whether the relationship began before 2022 (and offered specific details regarding when it began).[3] It is incomprehensible why Bradley, who previously represented Wade in a divorce proceeding, would communicate with an attorney seeking Willis’s dismissal from the case. And it was equally troubling that, when testifying, Bradley evaded nearly every question, suddenly claiming that he did not recall when the relationship began. Bradley’s text messages, not his dishonest testimony, tell the story.[4]

Also, Wade’s testimony was inconsistent with the answers he provided to interrogatories in his prior divorce proceeding. As Judge McAfee stated, Wade’s “patently unpersuasive explanation for the inaccurate interrogatories he submitted in his pending divorce indicates a willingness on his part to wrongly conceal his relationship with the District Attorney.”[5] Well, if Wade’s explanation that the relationship began in 2022 was “patently unpersuasive,” then Willis’s testimony was too. As they say, what is good for the goose is also good for the gander.

Lest there be any doubt, the defendants provided evidence that, before 2022, Willis and Wade had exchanged thousands of text messages and that Wade was located near Willis’s residence approximately thirty-five times.[6] What’s more, after the hearing, two additional witnesses came forward with information that the relationship began before 2022, but Judge McAfee declined to hear their testimony.[7]

Third, Willis’s claim that she reimbursed Wade in cash for money that he expended on their numerous vacations – while Willis employed and supervised Wade – strains credulity. Indeed, Willis’s explanation for the reimbursements is quite convenient because it ensures that they cannot be traced. And it is odd that a district attorney, who, as a public servant, arguably has an obligation to disclose such reimbursements, would select a method for which no documentation would exist. One would think that, in the interest of disclosure and transparency, Willis would do the opposite.

Judge McAfee summarized Willis and Wade’s questionable conduct as follows:

Even if the romantic relationship began after … Wade’s initial contract in November 2021, the District Attorney chose to continue supervising and paying Wade while maintaining such a relationship. She further allowed the regular and loose exchange of money between them without any exact or verifiable measure of reconciliation. This lack of a confirmed financial split creates the possibility and appearance that the District Attorney benefited - albeit non-materially - from a contract whose award lay solely within her purview and policing.[8]

Judge McAfee almost certainly did not believe Willis and Wade, stating in his opinion that “the General Assembly, the Georgia State Ethics Commission, the State Bar of Georgia, the Fulton County Board of Commissioners, or the voters of Fulton County may offer feedback on any unanswered questions that linger.”[9] That should tell you all you need to know.

Given his findings, how could Judge McAfee conclude that the defense had failed to establish by a preponderance of the evidence that the relationship began before 2022, that Willis was not truthful on the stand, and that Willis should not be disqualified? No one can know the answer to this question, but a few explanations appear likely. Judge McAfee may have been afraid to disqualify Willis because of the far-reaching implications of such a decision. Doing so would have made it highly likely that Trump would not be prosecuted, and that McAfee would face a significant backlash from Fulton County’s legal community and voters. Additionally, considering that Judge McAfee is a new judge in an overwhelmingly liberal county, and married with two children, he may have feared that disqualifying Willis would have threatened his career and safety.

Alternatively, Judge McAfee may have honestly believed that he was reaching the right result because, despite Willis’s and Wade’s unethical conduct, no actual conflict of interest existed. But if the relationship began in 2019 or 2020, which the evidence overwhelmingly suggests, Willis had an actual conflict of interest when she hired Wade, when she chose Wade the lead the prosecution against Trump and the other defendants, when she continued to employ and supervise him, and when she paid him hundreds of thousands of dollars for his services. And Willis’s lack of candor on the stand is itself a conflict of interest because her and Wade’s personal interest in concealing the relationship conflicted with their duty to testify truthfully and disclose that relationship. Under these circumstances, disqualification should be the remedy for precisely the type of egregious and unethical conduct that Judge McAfee cited in his decision.

Whatever the reason, Judge McAfee showed himself to be a careful, thoughtful, and conscientious judge, and his findings regarding Willis’s and Wade’s unethical conduct will surely impact Willis’s ability to remain as the prosecutor going forward.

2.    The prosecution against former President Donald Trump is irreparably tainted.

In his opinion, Judge McAfee criticized Willis for her “tremendous lapse of judgment” and the “unprofessional manner of [Willis’s] testimony,” and concluded that the hearing had an “odor of mendacity” that created the appearance of impropriety.[10] Indeed, Willis’s speech at the church, her previously undisclosed relationship (and vacations) with Wade, her questionable theory of cash-only (and thus untraceable) reimbursements, and her combative testimony under oath, compromised irreparably her credibility and stained the prosecution with an unremovable taint.

For these and other reasons, Willis’s continued involvement in the prosecution will likely undermine the public’s faith in the legal system and the rule of law. As Judge McAfee stated:

As the case moves forward, reasonable members of the public could easily be left to wonder whether the financial exchanges have continued resulting in some form of benefit to the District Attorney, or even whether the romantic relationship has resumed. Put differently, an outsider could reasonably think that the District Attorney is not exercising her independent professional judgment totally free of any compromising influences … The testimony introduced, including that of the District Attorney and Wade, did not put these concerns to rest.[11]

It is deeply troubling that a district attorney, particularly one involved in the very public prosecution of a former president, would behave in this manner, rather than ensure that her conduct was beyond reproach.

In essence, Trump won this hearing even though he did not technically “win.”

3.    The weaponization of the law against Trump threatens to undermine the public’s faith in the rule of law.

If one honestly analyzes the cases and court decisions against Trump, one theme emerges: they are, at least to a degree, politically motivated and reflect personal animus against Trump.

For example, New York Attorney General Letitia James campaigned on the promise that she would target and prosecute Trump. And James brought a lawsuit against Trump under a rarely used statute – and before a decidedly liberal judge – that resulted in an arguably excessive $350 million dollar judgment against Trump.[12] We now live in a country where a prosecutor can openly campaign on and get elected to a position on a pledge to prosecute a specific individual.[13]

Additionally, Willis has been anything but shy about her hatred for Trump. Furthermore, the indictment against Trump – filed in Fulton County, which is overwhelmingly liberal – all but ensures a jury pool consisting of jurors who dislike Trump, much like the jury in Manhattan that awarded E. Jean Carroll eighty-three million dollars in damages for defamation, despite her attorneys seeking only a fraction of that amount.[14]

Likewise, the prosecution against Trump in the District of Columbia, which relates to his conduct on January 6, 2021, will, like in Manhattan and Fulton County, place Trump in an overwhelmingly liberal jurisdiction before an overwhelmingly liberal jury. Moreover, the prosecutors in the pending cases are desperately seeking to begin the trials in advance of the November election. That, again, should tell you all you need to know. The motive for these prosecutions is political, namely, to ensure that Trump loses the election in November.[15]

Regarding recent court decisions, the Colorado Supreme Court’s decision, where four justices (all democrats) held, despite the unambiguous language in Section Five of the Fourteenth Amendment, and the ambiguous language in Section Three, that Trump was an “insurrectionist” and therefore barred from Colorado’s presidential primary ballot, was utterly ridiculous.[16] Not surprisingly, the United States Supreme Court unanimously reversed the Colorado Supreme Court’s decision.

Also, some scholars and media personalities continue to make histrionic and laughable statements that defeating Trump is necessary to save democracy. Former Fourth Circuit Court of Appeals Judge Michael Luttig, for example, consistently foments division and fear by making melodramatic statements, such as that the November election is a struggle for democracy and that democracy’s survival depends on defeating Trump.[17] Well, democracy is not threatened because voters elect someone that you do not like.

4.    Steve Sadow is among the best attorneys in the country. 

Steve Sadow, the lead attorney for Donald Trump, is incredibly talented and among the nation's top attorneys. If law students and young lawyers want to see an example of powerful advocacy, they should look no further than Sadow. Indeed, Sadow eviscerated Terrence Bradley with concise, impossible-to-evade questions that left no doubt that Bradley was being untruthful. And Sadow knows how to craft a question in which he subtly incorporates argument into the lead up to the question, and his forceful and confident tone makes it seem like any answer that a witness gives other than the one Sadow's question implicitly suggests is not credible. 

Additionally, Sadow's preparation is impeccable. His arguments are well-organized, to the point, and delivered with a confidence and authenticity that maximizes their persuasive impact. In short, it's not just what Sadow says, but how he says it, that is so impressive. 

 

***

When Wade resigned as the lead prosecutor, he wrote that he was doing so “in the interest of democracy.”[18] Wade did not resign “in the interest of democracy.” He resigned because he got caught. And when the defendants initially filed their motion to disqualify Willis, she called the allegations in the motion – while under oath -- a lie.[19]  Judge McAfee’s decision demonstrates that the allegations were anything but a lie.

The rule of law, not democracy, is at stake. If prosecutors continue to try to “get Trump,” it will erode public confidence in the rule of law and its leaders.[20] That, and an “odor of mendacity,” is the true threat to democracy.

 

[1] Timothy H.J. Nerozzi, Judge in Georgia Slams Fani Willis’ ‘Improper’ Church Speech, ‘Playing the Race Card,’ (March 15, 2024), available at: Judge in Georgia slams Fani Willis' 'improper' church speech, 'playing the race card' (fox5atlanta.com)

[2] See State of Georgia v. Donald John Trump, et al. (March 15, 2024), available at: 151-ORDER-03-15-2024 (fultonclerk.org)

[3] Srah Fortinsky, Ex-divorce lawyer Key Texts on Willis-Wade Relationship Were Speculation (Feb. 27, 2024), available at: Ex-divorce lawyer: Key texts on Willis-Wade relationship were speculation | The Hill

[4] See id.

[5] State of Georgia v. Donald John Trump, et al. (March 15, 2024), available at: 151-ORDER-03-15-2024 (fultonclerk.org)

[6] See Nick Wooten, Trump Attorney: Cell Phone Data Could Show that Fani Willis Nathan Wade Lied About Relationship Timeline Feb. 23, 2024), available at: Phone data calls into question Wade-Willis relationship timeline | 11alive.com

[7] See Jason Morris, et al., Georgia Judge Asked to Allow New Testimony from Witnesses Who Allegedly Have Information on Willis-Wade Relationship (March 5, 2024), available at: Georgia judge asked to allow new testimony from witnesses who allegedly have information on Willis-Wade relationship | CNN Politics

[8] See State of Georgia v. Donald John Trump, et al. (March 15, 2024), available at: 151-ORDER-03-15-2024 (fultonclerk.org)

[9] Id.

[10] Id. (brackets added).

[11] Id.

[12] See Adam Reiss and Dareh Gregorian, Judge Fines Donald Trump More Than 350 Million, Bars Him from Running Businesses in N.Y. for Three Years (Feb. 16, 2024), available at: Judge Engoron fines Trump more than $350M, bars him from running businesses in N.Y. for 3 years (nbcnews.com)

[13] See Associated Press, NY Attorney General Letitia James Has a Long History of Fighting Trump and Other Powerful Targets (Sept. 28, 2023), available at: NY Attorney General Letitia James Has a Long History of Fighting Trump and Other Powerful Targets (usnews.com)

[14] See Lauren Del Valle, Jury Finds Trump Must Pay 83.3 Million to E. Jean Carroll (Jan. 26, 2024), available at: Trump must pay $83.3 million to E. Jean Carroll, jury says (cnn.com)

[15] The case against Trump in Florida, involving Trump’s alleged refusal to turn over classified documents, is arguably the most meritorious of those brought against Trump.

[16] See Trump v. Anderson, 2023 CO 63, available at: 23SA300.pdf (state.co.us)

[17]  See Shauneen Miranda, Former Pence Legal Aide: Trump’s Hold on the GOP Puts Democracy ‘In Grave Peril’  (Aug. 9, 2023), available at: Former Pence legal aide: Trump’s hold on GOP puts democracy “in grave peril” (axios.com)

[18] The Hill, Nathan Wade’s Resignation Letter (March 15, 2024), available at: READ: Nathan Wade’s resignation letter | The Hill

[19] See Kaitlyn Lewis, Fani Willis Says Lawyer ‘Lying’ During Disqualification Hearing (Feb. 15, 2024), available at:  Fani Willis Says Lawyer 'Lying' During Disqualification Hearing (newsweek.com)

[20]  See Alan Dershowitz, Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law (Hot Books, 2023).

March 17, 2024 in Current Affairs, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (3)

Tuesday, March 12, 2024

Can AI Help with Jury Selection?

A couple of months ago, I had my first experience sitting on a panel for voir dire.  It was a criminal case for the class E felony of fourth-degree domestic assault, which carries a maximum of four years’ imprisonment in Missouri.[i]  Having worked on behalf of the state in criminal cases for six years (and seeing a former colleague sitting at the bench when we walked into the courtroom), I knew I would not make the final cut.  But I did my best to respond truthfully and keep my outside legal knowledge to myself.

As an appellate attorney, I’ve read hundreds of voir dires but participated as counsel in only one, and even then, I was a distant second-chair.  Yet I can probably rattle off dozens of questions likely to be asked by both the prosecution and the defense, so I was thinking about how I would respond to those questions I knew were going to be asked—questions about my knowledge, interactions, and feelings about the criminal justice system, the nature of the crime, the burden of proof, and the presumption of innocence. 

But many of the questions I expected did not come.  We were asked many questions about the burden of proof and presumption of innocence, a few vague and awkwardly worded questions I suspect were directed at specific facts underlying the offense, and some about interactions with law enforcement.  But neither side asked if anyone on the panel had ever been the victim of, accused of, or knew anyone who had been the victim or accused in a domestic violence situation.  Before voir dire concluded, however, a panelist raised her hand and asked counsel if they wanted to know that kind of information, which of course they did.  And roughly five panelists then explained their connections with domestic violence, most of which appeared to be disqualifying connections that never would have come to light but for that one panelist’s question.

And this experience made me wonder if AI could help attorneys ensure that their voir dire questions adequately ferret out any potential bias in the panelists (or at least make a good record to preserve any issues later for appeal).[ii] 

To adequately ferret out bias, we must first understand what leads to bias, so I asked ChatGPT to create a list of potential biases any juror might have in a criminal case, and it identified the following:

  1. Confirmation Bias:
    • Tendency to interpret new evidence as confirmation of one's existing beliefs or theories.
  2. Pretrial Publicity Bias:
    • Opinions formed based on media coverage or public opinion about the case prior to the trial.
  3. Experience-Based Bias:
    • Personal or vicarious experiences with crime, law enforcement, or the legal system that may color perceptions of the case.
  4. Occupational Bias:
    • Work experience in law enforcement, legal, or other related fields that might influence views on evidence or testimony.
  5. Community Bias:
    • Pressure to decide in a certain way because of perceived community opinions or values.
  6. Sympathy Bias:
    • Decisions influenced by feelings of sympathy for the victim, defendant, or their families rather than the evidence.
  7. Prejudice:
    • Biases based on race, ethnicity, religion, gender, sexuality, or socioeconomic status of the defendant, victim, or witnesses.
  8. Authoritarian Bias:
    • A tendency to believe and defer to authorities or officials without sufficient scrutiny.
  9. Moral or Religious Beliefs:
    • Strong moral or religious convictions that might interfere with the juror's ability to consider certain types of evidence or testimony objectively.
  10. Punishment Bias:
    • Fixed beliefs about the criminal justice system, punishment, or specific crimes that might influence the juror's decision-making.
  11. Victim Blaming:
    • A tendency to blame victims for their own victimization, which might affect the juror's interpretation of the evidence or testimony.
  12. Overconfidence Bias:
    • Overestimation of one's own reasoning abilities or underestimation of the complexity of the case.
  13. Halo Effect:
    • The tendency to have an overall impression of a person, witness, or defendant and allow that impression to influence judgments about their specific traits or behaviors.
  14. Groupthink:
    • A tendency to conform to the majority opinion in the deliberation room, rather than independently evaluating the evidence.
  15. Anchoring Bias:
    • The reliance on the first piece of information encountered (initial impressions or evidence) when making decisions.
  16. Selective Memory:
    • Remembering things in a way that confirms one's preconceptions, often while forgetting evidence that contradicts those preconceptions.

I then asked it to identify general topics that should be addressed in voir dire for any criminal matter, and it responded:

  1. Juror Background Information:
    • Basic personal information (e.g., occupation, education).
    • Any connections to the legal or law enforcement communities.
  2. Knowledge of the Case:
    • Exposure to pre-trial publicity and media coverage.
    • Pre-existing knowledge or opinions about the case or parties involved.
  3. Experience with the Legal System:
    • Prior jury service and the nature of the case(s).
    • Personal or family experience with the legal system, whether civil or criminal.
    • Experience with being a victim, witness, or defendant in a legal proceeding.
  4. Views on Law and Order:
    • Beliefs about the criminal justice system's fairness and effectiveness.
    • Opinions on law enforcement and the legal process.
  5. Potential Biases and Prejudices:
    • Any biases or prejudices that could affect impartiality.
    • Attitudes towards race, ethnicity, religion, gender, or socioeconomic status that may be relevant to the case.
  6. Moral, Ethical, and Philosophical Beliefs:
    • Beliefs that might affect perceptions of guilt, innocence, or the nature of justice.
    • Opinions on controversial issues that might relate to the case (e.g., drug use, corporal punishment).
  7. Ability and Willingness to Serve:
    • Availability for the entire duration of the trial.
    • Any personal or professional conflicts that may affect the ability to serve.
  8. Understanding and Acceptance of Legal Principles:
    • Acceptance of the presumption of innocence.
    • Willingness to make decisions based solely on evidence presented in court.
    • Understanding of the standard of proof required in a criminal case (beyond a reasonable doubt).
  9. Decision-making and Deliberation:
    • Ability to deliberate fairly and openly with fellow jurors.
    • Willingness to change one's opinion if evidence warrants.
    • Comfort with discussing potentially distressing or sensitive topics.
  10. Case-specific Issues:
    • Attitudes towards specific aspects of the case (e.g., views on mental health issues if relevant to the case).
    • Opinions or knowledge about specific types of evidence (e.g., DNA evidence, eyewitness testimony).

While many of these questions were covered in the original juror questionnaire, it’s still a great list to consult to ensure full coverage.

Finally, I asked it to “draft a list of questions for voir dire in a state criminal case where the defendant is charged with two counts of fourth degree domestic assault and the victims are his wife and child.”  And the AI gave me this:

Background Questions

  1. General Information:
    • Can you please state your name, age, and occupation?
    • Have you or anyone close to you ever served in law enforcement or the legal profession?
  2. Case Awareness:
    • Have you heard about this case prior to today? If yes, what have you heard?
    • Have you formed any opinions about this case based on what you might have heard or read?
  3. Legal System Beliefs:
    • What are your general impressions of the criminal justice system?
    • Do you believe that the system is fair to defendants? Why or why not?
  4. Media Consumption:
    • Do you regularly follow news stories about criminal cases, either in the news, on television, or via social media?
    • Have you watched or read any true crime shows, podcasts, or books? Do you think these have influenced your views on criminal cases?

Experience with Domestic Violence

  1. Personal Experience:
    • Without providing specifics, have you or someone close to you ever been involved in an incident of domestic violence?
    • If yes, was the incident reported to law enforcement, and were you satisfied with the outcome?
  2. Perceptions and Beliefs:
    • What comes to mind when you hear the term 'domestic violence' or 'domestic assault'?
    • Do you believe that domestic violence is a private matter or a public concern? Please explain.
  3. Legal Perspective:
    • Do you believe that people accused of domestic violence should be considered innocent until proven guilty beyond a reasonable doubt?
    • In your opinion, are there ever situations where domestic violence is justified or excusable?

Attitudes Towards Defendants and Victims

  1. General Sentiments:
    • How do you generally view individuals who have been accused of a crime?
    • Do you feel that you can listen to testimony about alleged domestic violence and assault without forming a judgment until all evidence is presented?
  2. Child Involvement:
    • The alleged victims in this case include a child. Does this information affect your ability to remain impartial?
    • In cases where a child is involved as a victim, do you believe your emotions could interfere with your ability to weigh the evidence objectively?
  3. Defendant-Victim Relationship:
    • Do you believe that a spouse or a child is more or less likely to be truthful about accusations of domestic violence against a family member?
    • How do you feel about cases where family members are involved in legal disputes with each other?

Ability to Serve

  1. Time and Attention:
    • This trial may last several weeks. Do you have any personal or professional commitments that would prevent you from serving for the entire trial?
    • Are you willing and able to give your full attention to the evidence presented during this time?
  2. Decision Making:
    • Are you comfortable with the concept of deliberating in a group and coming to a unanimous decision?
    • Can you think of any reason why you would not be able to deliver a verdict based solely on the evidence presented and the judge's instructions on the law?

I understand that there’s a lot of “horse sense”[iii] involved in the actual strikes, but new or inexperienced attorneys may not yet have fully developed or honed this sense, and their clients also deserve a fair and impartial jury.  AI tools can be very helpful to not only discern what leads to bias but also provide potential questions to help draw it out.

 

[i] Mo. Rev. Stat. § 558.011.1(5) (Cum. Supp. 2023).

[ii]Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges.” Mu'Min v. Virginia, 500 U.S. 415, 431 (1991). And the importance of ferreting out bias pretrial lies not only in the right to a jury trial itself but also in the “no-impeachment rule,” which generally precludes jurors from later impeaching their own verdict through either affidavit or live testimony. Pena-Rodriguez v. Colorado, 580 U.S. 206, 209 (2017); see also Fed. R. Evid. 606 (Juror’s Competency as a Witness).

[iii] “Horse sense” is a term apparently coined by Karl Llewellyn in The Common Law Tradition: Deciding Appeals (1960), and it means “the balanced shrewdness of the expert in the art.”  Charles L. Barzun, Justice Souter's Common Law, 104 Va. L. Rev. 655, 726 n.238 (2018).

March 12, 2024 in Web/Tech | Permalink | Comments (0)

Sunday, March 10, 2024

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).

March 10, 2024 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, March 9, 2024

Using Verbs to Help Avoid Bias under ABA Model Rule 8.4(g)

As many know, I push students to avoid passive voice as a way to increase clarity.  We can also use careful verb choice to help remove bias.  Under ABA Model Rule 8.4(g) (2016), “It is professional misconduct for a lawyer to” engage in biased conduct, including “discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”  Comment 3 explains “[s]uch discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others.”  See https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/?login

In my classes, we discuss recognizing express and implicit bias, and then I suggest some concrete ways to help avoid bias in our legal writing.  One concrete way to eliminate bias is to choose verbs carefully. 

We know from social science that our verbs matter.  For example, in 1974 Loftus and Palmer published their famous study on eyewitness suggestion via verbs.  See https://www.simplypsychology.org/loftus-palmer.html.  Loftus and Palmer divided 45 students into 5 groups, asked them all to watch a video of a car crash, and then asked each group a slightly different question about the speed of the cars.  Loftus and Palmer manipulated the verb used in the question.  They asked the groups:  “How fast were they cars going when they smashed/collided/bumped/hi /contacted?”  Id.  Participants who heard “smashed” reported an average speed of 40.5 mph, while participants who heard “contacted” reported an average speed of 31.8 mph.  Id.  In other words, the eyewitnesses to the video crash responded to the verbs used by others to describe the crash.

When we hide the actor connected to our verbs, through passive voice, we can manipulate meaning even more.  See Robert C. Farrell, Why Grammar Matters: Conjugating Verbs in Modern Legal Opinions, 40 Loy. U. Chi. L.J. 1, 13-14 (2008).  For example, saying an “enslaver often withheld foods from the enslaved people on his plantation” has a very different meaning than “sometimes, enslaved people were not given food.”  When we use the passive voice about enslavers in my example, we are presenting a biased view of reality by not naming the actor who withheld food.  Thus, by removing the passive verb construction, we also decrease bias. 

Case law also shows how passive voice can create issues.  For example, in United States v. Zavalza-Rodriguez, 379 F.3d 1182, 1183 (10th Cir. 2004), the outcome turned on two competing provisions of the Federal Sentencing Guidelines.  The first provision used passive voice and allowed for a sentence enhancement “if a dangerous weapon” “was possessed.”  Id. at 1183-84.  The second clause allowed for a sentence reduction, under the active voice, if “the defendant” did not “possess a firearm or other dangerous weapon” in “connection with the offense.”  Id. The government argued because the defendant stipulated in plea agreement that a weapon “was possessed” under the first of these provisions, he could not assert he had not “possessed” a weapon under the second.  Id. at 1185. 

The Court of Appeals disagreed, noting, “[u]nder the first enhancing provision, the verb was ‘written in the passive voice, requiring a sentence enhancement “if a dangerous weapon (including a firearm) was possessed.”’  Id.  According to the court, “[t]his verb form did not identify who was doing the possessing and thus was broad enough to cover situations of ‘mere proximity’ to a weapon by a defendant, without a showing of ‘active possession.’”  However, “the verb form in the second, mitigating section, ‘did not possess . . . a firearm,’ is in ‘the active voice[,] requiring the defendant to do the possessing,’ or more accurately, requiring the defendant not to do the possessing.”  Id. at 1186-87.

Hopefully, these ideas will resonate with us as we do our best to avoid any express or implicit bias in our writing.  The more we choose verbs and verb construction carefully, the better chance we have of clearly conveying points for our clients in an unbiased way.

March 9, 2024 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Saturday, March 2, 2024

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.

March 2, 2024 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Oral Argument | Permalink | Comments (0)

Monday, February 26, 2024

(Nearly) Everything You Need to Know About Legal Writing You Learned in Kindergarten

My almost six-year-old is in the middle of learning to read and write in kindergarten. I love seeing him pick up books around the house and start reading. He has also brought home several writing projects.  As I watch him learn to write and hear his teacher’s pedagogical approach to reading and writing, I am discovering that some key points that I try to teach the “big kids” (aka—my law students) find their origins in kindergarten.

Point 1: Tell a story. Much of my son’s writing accompanies some sort of picture. The goal is to draw a picture and then write a story that describes the picture. This is not dissimilar from the approach my son’s teacher has used with reading—kids are encouraged to use “picture clues” to help identify unknown words.  Similarly, storytelling is an important aspect of legal writing. Legal writers can use various parts of a brief—like the introduction or the statement of the facts—to paint a word picture about their client. Increasingly, it is becoming more acceptable for legal writers to even use actual pictures in briefs to show the judges key aspects of a case.  Likewise, in the argument section of a brief an author might use writing conventions like analogy and metaphor to help the audience understand key legal principles.

Point 2: Think about the role of punctuation. A few months ago when my son and I were reading together, he paused when we came to a set of quotation marks and informed me that the words in the quotation marks needed to be read in a different voice. He then proceeded to create a voice for the character and read the words. I was impressed that he recognized the role of quotation marks in a story. He is starting to recognize other forms of punctuation too.  For example, he knows that an exclamation point signifies emphasis. We haven’t started on the Oxford comma yet, but it is only a matter of time.

Punctuation plays such a key role in legal writing. While judges probably don’t read the quotations in your briefs using character voices, they do expect your quotations to be accurate and relevant.  Your reputation depends on it.  They also expect you to use limited quotations—only directly quote key language that can’t be summarized, like contract or statutory language. Long block quotes just don’t get read.  Other aspects of punctuation are important too—the Oxford comma, limiting the use of emphasis, and the proper use of dashes. If you need a refresher on punctuation, I highly recommend my colleague Diana Simon’s book The (Not too Serious) Grammar, Punctuation, & Style Guide to Legal Writing.

Point 3: Watch your capitalization. While my son generally understands that there are capital and lower-case letters, he uses them inconsistently. He is just starting to understand that sentences start with capital letters, as do some words. One of my major pet peeves when it comes to legal writing is the inconsistent use of capitalization. I consider myself to be a capitalization minimalist—when in doubt, don’t capitalize! However, I tell my students that I will generally only mark things incorrect if they are inconsistent when they capitalize. So, if you decide to capitalize something in your brief, be consistent.  It will make your brief look more polished.

Point 4: Think about the aesthetics of the page. Kindergarteners struggle with writing an aesthetically pleasing page. If I give my son a piece of unlined paper, his words and letters vary widely in size. With lined paper, his letters are more consistently sized, but he struggles with spacing between words. His words are either too close together or too far apart. His teacher has popsicle sticks in the classroom that he and his classmates can use to leave proper spacing between words—she calls them “spacemen.”

While I want to write an ode to two spaces after a period for this point, I am going to resist.  Rather, legal writers need to be mindful about how their words appear on a page, especially in the age of the digital reader. Pages should include sufficient blank or empty space to not overly stress the eyes. Paragraphs should be short.  Spacing should be proportional. A nicely formatted brief that complies with court rules makes a great first impression.

Point 5: Do you own work. A few weeks ago my son brought home a worksheet that had a small section crossed out. His teacher had written a note that he had copied off a friend. It was pretty apparent that the friend he had copied from was not as strong of a writer. Trying to suppress laughter, we talked to our son about the importance of doing your own work. Similarly, legal writers need to do their own work. That means don’t plagiarize and don’t blindly rely on AI. If your name is on a brief, you should feel 100% confident about every case citation and legal principle. Your reputation depends on it.

February 26, 2024 in Legal Writing | Permalink | Comments (1)

Sunday, February 25, 2024

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.

February 25, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Sunday, February 18, 2024

Reflections on the Supreme Court’s Oral Argument in Trump v. Anderson

The oral argument in Trump v. Anderson indicated that the United States Supreme Court would reverse the Colorado Supreme Court’s decision disqualifying Donald Trump from the ballot.[1] In fact, the Court’s decision will likely be unanimous for three reasons.

1.    Affirming the Colorado Supreme Court's decision would enable states to disqualify different candidates and thus create a lack of uniformity among the states regarding which candidates voters could select. 

If the Supreme Court affirmed the Colorado Supreme Court’s decision, then Texas and other conservative states could disqualify President Biden from the ballot based on whatever subjective definition of insurrection they adopted, while liberal states could likewise disqualify Donald Trump. Imagine living in a world where, for example, ten states prohibited its citizens from voting for Trump while eight states prohibited its citizens from voting for Biden. Such a result would disenfranchise millions of voters and, as Chief Justice Roberts stated, enable a handful of states to decide the presidential election. Nothing could be more anti-democratic, at “war with the thrust of the Fourteenth Amendment,” and anathema to a society that values free and fair elections.[2]

Indeed, the justices recognized that affirming the Colorado Supreme Court’s decision would be far-reaching and fundamentally anti-democratic. For example, Justice Alito asked Jason Murray, the respondent’s attorney (and an outstanding lawyer), whether a state court could exclude from the ballot a presidential candidate that the court did not prefer simply because the candidate was leading in the polls. Murray answered in the affirmative – and that all but sunk Colorado’s argument.

The justices also suggested that the Colorado Supreme Court’s decision was contrary to the Fourteenth Amendment’s original purpose. As Chief Justice Roberts emphasized, the Fourteenth Amendment was designed to expand federal power and restrict state power. Thus, to conclude that the states have the power to disqualify federal candidates – particularly where the disqualification is predicated on an ambiguous provision – would be incongruous with the Fourteenth Amendment’s original purpose. For these and other reasons, Justice Kagan and Justice Barrett suggested that the question of whether a former president is disqualified for insurrection “sounds awfully national,” which is consistent with Section Five’s text, which gives Congress, not the states, the power to implement Section Three, and with the principle that there be uniformity among the states regarding who voters may select for president.[3]   

2.    Section Three of the Fourteenth Amendment is ambiguous and should not be construed to frustrate democracy.

Justice Kavanaugh and Justice Jackson explained that, unlike the Constitution’s age and nationality requirements, which are categorical and unambiguous, Section Three was susceptible to different interpretations and therefore should not be construed in an anti-democratic manner. For example, Justice Kavanaugh noted that the word “insurrection,” is broad and that Section Three contained no information concerning the procedures needed to determine whether a president was an insurrectionist. Likewise, Justice Jackson expressed concern that the President of the United States may not be an “officer of the United States” because the plain language of Section Three does not include the word “President,” therefore suggesting that the president is not within Section Three’s purview.

Given the fact that Section Three is ambiguous, why, as Justice Kavanaugh and Justice Jackson emphasized, should the Court reach an outcome that frustrates rather than facilitates democratic choice? And how should the Court resolve the issue regarding a candidate’s disqualification if states adopt different definitions of “insurrection,” adopt different evidentiary rules, and adopt different standards of proof? Colorado’s attorneys had no satisfactory answer.

3.    Affirming the Colorado Supreme Court’s decision would enable one state to decide a presidential election.

Justice Kagan rightly emphasized that, if the Court affirmed the Colorado Supreme Court’s decision, one state (or a handful, as Chief Justice Robers noted) could decide the presidential election. To be sure, some if not many states would subsequently disqualify Trump from the ballot, making the Colorado Supreme Court the primary decision maker in the presidential election. Additionally, imagine if a presidential election was remarkably close and would be decided by the outcome in one state, but that state had disqualified Donald Trump from the ballot. This would give the presidency to Trump’s opponent and disenfranchise every voter in that state who supported Trump. Of course, some state courts could decide to distinguish the Colorado Supreme Court’s decision and therefore keep Donald Trump on the ballot, but even under this scenario, there would exist precisely the disuniformity that would compromise democratic choice.

Ultimately, the oral argument in Trump v. Anderson suggests that the Supreme Court will unanimously reverse the Colorado Supreme Court’s silly decision.

What was most disappointing was to see well-respected constitutional law scholars, such as J. Michael Luttig, a former judge on the United States Court of Appeals for the Fourth Circuit, and Laurence Tribe, a professor at Harvard Law School, so vehemently advocating for affirmance of the Colorado Supreme Court’s decision. Judge Luttig argued that the decision was unassailable, that Section Three’s text was unambiguous, and along with Professor Tribe, that affirming the Colorado Supreme Court’s decision was vital to preserving democracy.[4] To make matters worse, these scholars relied heavily on the Report of the January 6 Committee, even though the January 6 hearings included only committee members that were biased against Trump and even though the committee adhered to none of the evidentiary standards that a trial – and due process – requires. The fact that Judge Luttig and Professor Tribe relied on this report and championed a decision by the Colorado Supreme Court that, given the text and history of Section Three, was so obviously wrong, is troubling.

Lest there be any doubt, imagine a world in which states could disqualify candidates based on different interpretations of Section Three, different evidentiary standards, and different burdens of proof. The result would be to allow one or more states to determine the presidential election based on nothing more than disdain for a presidential candidate, and to disenfranchise millions of voters by prohibiting them from voting for their preferred candidate. That would be as anti-democratic as you can get.

Thankfully, the U.S. Supreme Court recognized this and is poised to unanimously reverse the Colorado Supreme Court’s silly decision. Democracy depends on them doing so – and they will.

 

[1] See Trump v. Anderson, Oral Argument, available at: Trump's 2024 ballot eligibility being weighed by Supreme Court | full audio (youtube.com)

[2] Id.

[3] Id.

[4] See, e.g., Enormously Important Protection of Democracy: Tribe and Luttig on CO Barring Trump from Ballot (Dec. 21, 2023), available at: ‘Enormously important protection of democracy’: Tribe & Luttig on CO barring Trump from ballot - YouTube

February 18, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, February 17, 2024

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. 

February 17, 2024 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Legal Ethics, Legal Profession, Legal Writing, Oral Argument | Permalink | Comments (0)

Wednesday, February 14, 2024

Judicial Ethics Beyond the U.S. Supreme Court

Concerns about the absence of any applicable judicial ethics standards to justices of the U.S. Supreme Court grew into loud demands for an ethics code last year. The result was the adoption of a code largely consistent with the one applicable to federal judges generally, although it contained some important exceptions and also lacked any enforcement mechanism. As a result, recusal remains an individual decision for each justice with only vague and voluntary guidance.

Even though the rules may seem more clearly defined in other courts, surprisingly, issues remain. In 2009, the U.S. Supreme Court issued a decision in Caperton v. Massey, which applied the Fourteenth Amendment’s due process clause to judicial recusal. Brent Benjamin had won election as a justice to the West Virginia Supreme Court of Appeals. Substantial independent expenditures by a party in the case likely helped Benjamin’s candidacy. He nonetheless refused to recuse and argued that the money did not come to him, did not necessarily help his campaign, and did not affect his vote in favor of his so-called benefactor. Disagreeing, the U.S. Supreme Court ruled that the “risk of actual bias” was serious enough “based on objective and reasonable perceptions” that recusal was mandatory.

Although Caperton seemed to establish a standard that erred in favor of recusal, high court justices often determine for themselves whether they should be recused and adopt a personal standard. In one case I had in that same West Virginia court, I asked a justice to recuse himself after he had campaigned on a pledge to uphold the law I was challenging in remarks during his campaign to the group that had lobbied in favor it. He initially denied the motion for recusal, writing a statement about how he had First Amendment rights. Subsequent press coverage, quoting ethics experts who agreed that recusal was warranted, caused him to rethink his position and agree to recuse himself.

Today, the recusal issue is squarely presented in a case pending in the Ohio Supreme Court. Justice Joe Deters joined the Court a year ago after a career largely spent as a county prosecutor. The Court heard oral argument in State v. Glover on February 7. In a bench trial, a judge found Glover guilty of aggravated robbery and kidnapping after a crime spree in which he forced individuals at gunpoint to take him to an ATM, where he robbed them. The judge gave an aggregate sentence of 60 years for the multiple felonies with consecutive sentences. An appellate court found error in the sentence, ordering it reduced to an aggregate of 25 years. The State brought the case to the Ohio Supreme Court.

Justice Deters chose not to recuse himself, despite having served as lead counsel in the prosecution of Glover just two years ago. Ohio Rule of Judicial Conduct 2.11(a) requires a judge to “disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” Among the specific examples of circumstances warranting disqualification are: (1) having “personal knowledge of facts that are in dispute in the proceeding” and (2) the judge “act[ed] as a lawyer in the proceeding.”

Even though the issue is now a larger one than the underlying case and concerns the criteria applicable to sentencing when multiple crimes are committed, any decision will determine the length of Glover’s incarceration. It seems clear that Justice Deters has “personal knowledge of facts in dispute” and “act[ed] as a lawyer in the proceeding.” Moreover, the case was argued by Deters’s former co-counsel, which also requires disqualification. Given that the appearance of impropriety suffices to disqualify, the decision against recusal comprises an affront to due process. At oral argument, only Deters asked no questions. His silence, however, does not cure the problem.

As with Caperton, the potential exists for this case to land in the U.S. Supreme Court. If the Ohio Court of Appeals is reversed, particularly if Deters’s vote is decisive, Glover’s appointed counsel could raise Fourteenth Amendment due process objections. No one should miss the irony of a Court where recusal is entirely voluntary deciding when it should be mandatory for others.

February 14, 2024 in Appellate Court Reform, Appellate Justice, Current Affairs, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, February 13, 2024

Arguing the Unprecedented

During the first year of law school, most of us learned about “stare decisis” (or the doctrine of precedent) and which authorities are binding and which are merely persuasive.  We were taught a hierarchy of authority and how to effectively use various decisions to advocate on behalf of a client.  And I suspect many of our professors suggested that policy arguments were on the weaker end of the spectrum and should be relied on only if insufficient precedent existed to draw from.

But listening to the oral arguments in Trump v. Anderson[i] got me thinking about the value of policy arguments and whether our priorities are misplaced.  While stare decisis certainly lends a great amount of predictability to the legal system, it works only if there is, in fact, precedent to draw upon.

Jason Murray, counsel for Anderson et al., was asked on multiple occasions by Justice Thomas for any examples he could produce to support his argument that a state has the authority to disqualify a national candidate.  And Jonathan Mitchell, counsel for Trump, relied almost exclusively on a single case:  In re Griffin, 11 F. Cas. 7 (C.C.D. Va. 1869), which Justice Sotomayor directly noted “was not a precedential Supreme Court decision.”

The case is unprecedented in a multitude of ways:

  1. Trump is the only former president other than George Washington who did not take an oath to support the Constitution.[ii]
  2. Section 3 of the Fourteenth Amendment has never been used to block a presidential candidate from a ballot.
  3. No case has ever interpreted whether the president falls within the scope of § 3.[iii]
  4. No case has determined what process, if any, is due with respect to the determination of whether a person “engaged in insurrection” for purposes of § 3.

Even the Griffin case, upon which Mitchell hung his hat, is not all that instructive or persuasive.  Griffin was a habeas action wherein the petitioner sought to have his conviction vacated because the judge who presided over his trial had been a sympathizer of the Confederacy.[iv]  The petitioner argued that § 3 was self-executing, resulting in the judge being a usurper of his position without legal authority to sit on any cases or render any judgments.[v]  The petitioner’s end game was to vacate his conviction as void; he expressly disavowed any effort to remove the judge from his position, much less prevent the judge from running for office at a later date.[vi]  And, even the opinion’s one relevant holding—that § 3 is not self-executing and, instead, requires action by Congress—is weak precedent given that Chief Justice Chase (who authored the decision) held exactly the opposite only a couple years later in the trial of Jefferson Davis for treason.[vii]  Judge Wynn of the Fourth Circuit recently noted that the contradictory holdings in both Griffin and Davis “make it hard to trust [Justice] Chase’s interpretation.”[viii]

This absence of precedent left the parties with two options:  statutory interpretation and policy justifications for their respective positions.  While there were certainly legitimate statutory interpretation arguments available,[ix] others depended upon legislative intent, using such disfavored canons of construction as “expressio unius est exclusio alterius,”[x] or remarks from one of the drafters.[xi]

But the main sticking point that most of the Court kept coming back to was ultimately a policy-based issue:  “why [should] a single state . . . decide who gets to be president of the United States”?[xii] Though a decision has not yet been handed down in the case, and the Court has numerous legal grounds upon which to base its decision, it may very well be this unanswerable question that drives the outcome at the end of the day—even if not expressly included in the language of the Court’s opinion.

By many measures, we live in unprecedented times. “Unprecedented” was even the People’s Choice Word of the Year for 2020 according to Dictionary.com.[xiii]  It seems inevitable that more and more legal issues will be unprecedented as well.  Perhaps our policy-based arguments should play a more prominent role.

 

[i] https://www.oyez.org/cases/2023/23-719.

[ii] The presidential oath contains an oath to preserve, protect, and defend the constitution:  “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”  But it does not contain an oath to “support the Constitution” as is contemplated by § 3 of the Fourteenth Amendment.  The oath for the vice presidents, senators, representatives, and other federal employees, on the other hand, does include an oath to support the Constitution:  “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”  Inauguration of the President of the United States, available at:  https://www.usa.gov/inauguration (last accessed Feb. 12, 2024).  Because Trump never served in Congress or held any other federal office before becoming president, he was never required to take an oath to support the Constitution, making his position unique and unprecedented even among other former presidents.

[iii] Arguably, there is precedent that § 3 was applied to “a” president (at least nominally) insofar as it was applied to Jefferson Davis, former president of the Confederate States of America. In re Davis, 7 F. Cas. 63, 89 (C.C.D. Va. 1871). But, even there, Davis fell within the scope, not as a president, but because he had taken an oath to support the constitution as a former member of the United States Congress in 1845.  Id. at 90.

[iv] In re Griffin, 11 F. Cas. 7, 12 (C.C.D. Va. 1869).

[v] Id.

[vi] Id. at 14-15.

[vii] In re Davis, 7 F. Cas. 63, 89 (C.C.D. Va. 1871) (holding that § 3 “executes itself, acting proprio vigore.  It needs not legislation on the part of congress to give it effect. From the very date of its ratification by a sufficient number of states it begins to have all the effect that its tenor gives it.”).

[viii] Cawthorn v. Amalfi, 35 F.4th 245, 278 n.16 (4th Cir. 2022) (Wynn, J., concurring). Judge Wynn also noted that neither Griffin nor Davis were binding because, even though Justice Chase was then the Chief Justice of the United States, both decisions were made while he was acting as a circuit judge.  Id.

[ix] The parties argued about the meanings of the phrases “office . . . under the United States” and “officer of the United States” by comparing the meanings of the same or similar phrases in other parts of the Constitution.

[x] The canon “expressio unius est exclusio alterius” means “to express or include one thing implies the exclusion of the other.” Expressio Unius Est Exclusio Alterius, Black's Law Dictionary (11th ed. 2019). This idea was used to argue that, by expressly including positions other than the presidency from the list of those upon whom § 3 operates, the drafters intended to exclude the presidency from its scope.  This canon “does not apply to every statutory listing or grouping; it has force only when the items expressed are members of an ‘associated group or series,’ justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence.”  Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003).

[xi] In response to a question from Justice Jackson as to why the drafters omitted the president from the list if they, in fact, intended the presidency to be covered, Murray noted that one of the drafters, in response to a question about why neither president nor vice president were included in the list, indicated that they were covered by the phrase “any office under the United States.” Later, in response to similar questions from Justice Jackson, Mitchell seemed to agree, stating that “there is some evidence to suggest that [the presidency was what they were focused on]” and one draft of § 3 “specifically mentioned the presidency and the vice presidency.” https://www.oyez.org/cases/2023/23-719.  But “the contemporaneous remarks of a single legislator who sponsors a bill are not controlling in analyzing legislative history.”  Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980).

[xii] Justice Elena Kagan, oral argument in Trump v. Anderson, available at https://www.oyez.org/cases/2023/23-719.

[xiii] https://www.dictionary.com/e/peoples-choice-word-of-the-year-2020/.

February 13, 2024 in Appellate Advocacy, Appellate Practice | Permalink | Comments (0)

Monday, February 12, 2024

Do Politics Matter?

Happy post-Superbowl Monday (a day that I think should be a federal holiday, but that is a post for another time).

Over the weekend I received an email about a recent paper written by Harvard Law Professor Alma Cohen. Prof. Cohen's paper is an empirical study that shows the political affiliation of federal appellate judges can help predict the outcome in some cases. From the abstract:

This paper contributes to the long-standing debate on the extent to which the political affiliation of federal circuit court judges, as proxied by the party of their nominating president, predicts case outcomes. I compile and analyze a novel dataset containing more than 650,000 circuit court cases from 1985 to 2020. I find a pervasive association between political affiliation and outcomes in the vast universe of circuit court decisions that is not limited to the ideologically salient cases or published cases on which previous research has focused. The political composition of circuit court panels, I show, has a broad impact on practically all fields of US federal law.

In particular, I find an association between political affiliation and outcomes in each of the six categories of cases between litigants that judges could perceive as having unequal power. These categories include cases in which the government litigates against criminal defendants, prisoners, and immigrants, and cases in which individuals litigate against institutions. In each of the six case categories that I identify, the more Democratic judges a panel has, the higher the odds of the panel siding with the seemingly weaker party.

Furthermore, political affiliation is associated with outcomes in the large set of civil cases between parties that could be perceived to be of equal power. In these cases, panels with more Democratic judges are less likely than panels with fewer Democratic judges to defer to lower-court decisions.

Altogether, my analysis shows that political composition can help to predict outcomes in case categories that together represent over 90% of all circuit court cases. I conclude by discussing the implications of my findings for understanding the evolving body of decisions issued by circuit courts and for assessing the legal rules and arrangements that govern such courts.

A two interesting points from the paper. First, Prof. Cohen uses an exceptionally large sample of cases (670,000)--significantly larger than samples used in previous studies. She also includes unpublished cases.  Second, Prof. Cohen recognizes that using the politics of the appointing president might be an imperfect proxy for the politics of the judge. I agree. To the extent that future research wants to look at this issue, I would recommend also looking at which party controls the US Senate and the political affiliation of the home state senators (less relevant for circuit court noms, but still relevant).

I look forward to seeing more papers from Prof. Cohen as she explores this topic.

February 12, 2024 | Permalink | Comments (0)

Saturday, February 3, 2024

The Colorado Supreme Court's Silly Decision

Recently, the Colorado Supreme Court, in a 4-3 decision, held that former President Donald Trump was not eligible to remain on the ballot for Colorado’s upcoming primary.[1] While this article will not dissect every aspect of the Court’s decision, it will focus on the principal grounds for the decision, its effect on democratic choice and, its impact on the judiciary’s institutional legitimacy.

The Colorado Supreme Court based its decision on three findings.

First, the Court held that, under Section Three of the Fourteenth Amendment to the United States Constitution, Trump was an “officer of the United States.”[2] A reasonable argument can be made, however, that Trump is not an “officer of the United States” because the Fourteenth Amendment, while mentioning “Senator” and “Representative,” never mentions “President,” and the text lists federal officials in descending order from “Senator” to “Representative” to civil or military office holder. Additionally, an earlier draft of Section Three included the word “President,” but it was deleted and not included in the final version. Furthermore, the historical record suggests that Section Three applies to appointed, not elected, positions.[3] At the very least, one can argue that Section Three is ambiguous concerning whether the president is included in that section.[4] The point is not to say that the Colorado Supreme Court’s decision holding that Trump is an “officer of the United States” is meritless. It is to say, however, that the text is susceptible to alternative interpretations. In such a situation, the Court should reach an outcome that furthers, not hinders, democratic participation, and that enhances, rather than reduces, democratic choice. The four justices in the majority, all appointed by Democratic governors, chose the opposite path.

Second, the Court held that former President Trump “engaged in” an insurrection. Surely, the events on January 6, 2020, were disgraceful and a sad moment in our country’s history. Thousands of citizens stormed the Capitol Building, destroyed property, threatened lawmakers, and caused harm that resulted in five deaths.[5] As despicable as this conduct was, however, a reasonable argument can be made that Trump neither incited this violence nor engaged in an insurrection. To begin with, in Trump’s January 6 speech, he told protesters to march to the Capitol “peacefully and patriotically.”[6] This language alone makes it difficult to assert, under Brandenburg v. Ohio, that Trump incited imminent and unlawful violence.[7] Additionally, what precisely did Trump do that constitutes “engaging in” an insurrection? Yes, Trump encouraged his supporters to “fight like hell,” but he also told his supporters to march “peacefully and patriotically" and he did ultimately call for the protestors to “go home.”[8] Thus, a credible argument can be made that Trump never “engaged in” an insurrection. Additionally, Congress has already codified insurrection in 18 U.S.C. 2383, which requires a criminal conviction before one can be deemed an insurrectionist. Trump has never been charged with, much less convicted of, insurrection, and on February 13, 2021, the Senate acquitted Trump of this charge.[9] If Trump had been charged, he would have, at the very least, been afforded the due process protections that were so conspicuously absent in the lower court in Colorado. Given the above facts, particularly the dearth of fair procedures in the lower court (e.g., no discovery, inability to subpoena documents, and no opportunity for a fair trial), how could the Colorado Supreme Court possibly hold that Trump “engaged in” an insurrection, the result of which was to eliminate the leading Republican presidential candidate from the Colorado primary and thus undermine democratic choice? The answer should seem obvious – and that answer has nothing to do with the law or the Constitution.

Third, the Colorado Supreme Court held that Section Five of the Fourteenth Amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” was self-executing and thus enabled the Court to adjudicate whether Trump engaged in an insurrection and could be disqualified from the ballot.[10] Certainly, one could argue that, in mentioning Congress in Section Five, the drafters did not mean to give Congress exclusive authority to enforce Section Three. But one could also argue that the text could not be clearer: only Congress has the power to enforce Section Three, which it did when enacting 18 U.S.C. 2383 and which, as stated above, requires a criminal conviction for insurrection – a crime for which Trump was never charged. Yet again, the Colorado Supreme Court ignored these facts and, unlike every state court that previously considered this issue, made the unprecedented and decidedly undemocratic choice to hold that Trump was disqualified from the ballot.[11]

Does it seem correct that the Constitution’s drafters believed that a state court could adjudicate a matter where the liberty interest at stake was so substantial yet the procedures for determining whether to deprive a citizen of that interest were so truncated? Of course not. This is particularly true considering that the district court's decision that Trump had engaged in an insurrection was based largely on the findings of the January 6 Committee, which selectively called witnesses, admitted hearsay evidence, and otherwise observed none of the procedural safeguards that a trial requires. Yet, at every turn, whether it was deciding if Trump was an “officer of the United States” or had “engaged in” an insurrection, or whether Congress had the exclusive authority to enforce Section Three, the Colorado Supreme Court ruled against Trump. In so doing, the Colorado Supreme Court made originalism its best friend even though its justices are anything but originalist. Convenience obviously trumped conviction.

As stated above, this is not to say that a particular interpretation of Sections Three and Five is superior to another. It is to say that when reasonably alternative interpretations of a constitutional text or statute are possible, courts should reach outcomes that promote democratic choice and participation.[12] Viewed in this light, the Colorado Supreme Court’s interpretation of the Fourteenth Amendment and resulting decision was entirely unreasonable. The courts in Michigan, Minnesota, Oregon, Nevada, and Rhode Island, which dismissed lawsuits that could have resulted in Trump’s disqualification from their respective ballots, got it right.[13] 

The Colorado Supreme Court could not have honestly believed that its decision preserved democratic choice or protected democracy. Furthermore, like any rational person, the Colorado Supreme Court – whose justices were all appointed by Democratic governors – must have known that its decision would be controversial, invite chaos and uncertainty into the electoral process, engender charges of partisanship and election interference, foment division, further erode public trust in the judiciary and rule of law, and fuel the belief that it was motivated by the desire to prevent Trump from regaining the presidency. After all, if this case involved Hillary Clinton, Barack Obama, or Joe Biden, does anyone believe that the Colorado Supreme Court would have reached the same result? If you believe that the answer is yes, you probably also believe that Letitia James and Fani Willis (whose days prosecuting Trump may soon be numbered), acted impartially and with reverence for the law when they sought indictments against Trump based on tenuous legal theories, and in jurisdictions that are so overwhelmingly liberal that a fair trial is a fantasy.  Additionally, the Colorado Supreme Court surely must have known that the United States Supreme Court would almost certainly overturn its decision, particularly on due process grounds.

Given these facts, and given that the provisions upon which the Colorado Supreme Court’s decision was based were subject to alternative and equally reasonable interpretations, how could the four democratically appointed justices have thought this decision was a good idea? How could they believe that, in an era where some believe that democracy is “at risk” and “on the ballot,” this decision would not engender claims that it was an anti-democratic and politically motivated attempt to eliminate Trump from the presidential race? The truth is that the majority engaged in politics, not law, and was motivated by emotion, not reason. They were striving to find any path, however implausible, to reach an outcome that was pre-determined and fundamentally dishonest.

Not surprisingly, the usual suspects, including some law professors (the vast majority of whom are overwhelmingly liberal) and mainstream legal commentators, such as former Trump apologist George Conway, who believes Trump should spend the rest of his life in prison, have come out of the woodwork to support the Colorado Supreme Court.[14] Whether through law review articles, poorly written amicus briefs, or media interviews, these “experts” often use fancy words and legalese to create the veneer of objectivity and the pretense of neutrality when their motivations are anything but neutral or objective. And like the Colorado Supreme Court, these “experts,” who consistently criticize originalism in favor of “living constitutionalism,” have suddenly adopted originalism to support their arguments, even though they have spent much of their careers criticizing originalism – and Justice Antonin Scalia – as “racist,” “oppressive,” and a threat to those who value victimhood. Ultimately, one should be wary of individuals whose arguments so conveniently coincide with their personal beliefs.

Make no mistake: a political agenda that is rooted in a dysfunctional hatred of Trump and a disregard for the very democracy they claim to want to preserve and protect motivates these “experts.” As stated above, if this case involved Hillary Clinton, Barack Obama, or Joe Biden, does anyone really think that Harvard Law Professor Laurence Tribe or any of the law professors who submitted amicus briefs in support of the Colorado Supreme Court's decision would take the same position? Of course not. And for those liberal scholars who chastise Trump for claiming that the 2020 presidential election was “stolen,” recall how vehemently some of these scholars questioned the result in Florida after the 2000 presidential election, and how they trashed the Supreme Court when the majority did not rule in favor of Al Gore. Likewise, remember when Stacey Abrams said after her loss in 2019, “[d]espite the final tally and the inauguration … I do have one very affirmative statement to make. We won.”[15] Also, one cannot forget Hillary Clinton repeatedly claiming that Trump was an illegitimate president.[16] These comments sound eerily like Donald Trump, don’t they? 

It should come as no surprise that the public has lost faith in the judiciary and our academic institutions. Sadly, the Colorado Supreme Court’s decision is only the tip of the troubling iceberg. In Dobbs v. Jackson Women’s Health, the U.S. Supreme Court decided to overturn a nearly half-century precedent – Roe v. Wade – because the political affiliations of the justices had changed, with Justice Amy Coney Barrett replacing Justice Ruth Bader Ginsburg and Justice Brett Kavanaugh replacing Justice Anthony Kennedy.[17] And in Students v. Fair Admissions v. Harvard, the Court, once again armed with two new Republican-appointed justices, suddenly discovered that affirmative action programs were unconstitutional.[18]  In both cases, the justices were neatly and predictably split along ideological lines. In other words, the Constitution’s meaning is contingent upon the party affiliations of the justices.

The health of this country and its institutions is deteriorating. Citizens used to revere our public institutions, including state and federal courts, particularly the Supreme Court, admire professors for teaching and mentoring young people, and look to the media to report accurately and objectively on public events. People used to believe that intelligence trumped ideology, and that integrity trumped indoctrination. That is no longer the case. Donald Trump has exposed what lies behind the curtain of the institutions and academies that we once considered hallowed ground: dishonesty, ideological uniformity, hypocrisy, and intolerance. If you doubt this, walk into some law schools, and ask to meet with a conservative professor. You might get arrested, charged with a microaggression, and ordered to undergo “anti-bias” training (which studies have shown does not work). Try to give a presentation about originalism at a law school and you might get shouted down by a mob of entitled, hyper-sensitive, and narcissistic students whose intelligence is eclipsed by their ideology. Indeed, some academic institutions focus more on indoctrinating students than teaching them critical thinking and writing skills, and welcoming diverse perspectives in the classroom.[19]

And they often show a shocking disregard for the very diversity, inclusion, and “safe spaces” that they claim to champion. For example, who would have thought that, at a congressional hearing in December 2023, the presidents of Harvard, MIT, and the University of Pennsylvania would fail to unequivocally and without hesitation condemn campus speech that called for the genocide of Jewish people? Who would have imagined that a law student at NYU – the president of the Student Bar Association – would be seen tearing down posters depicting the tragic loss of life to Israeli citizens and that administrators at various colleges would fail to immediately condemn Hamas’s despicable attack on Israel? Yet these are the same people who preach diversity and inclusion. It’s a disgrace, and the divisiveness that courts, the media, and academia have fomented in this country is nothing short of tragic. Civil disagreement is a vestige of the past, and collegiality is an aspiration, not a reality. Arrogance has taken precedence over humility, and hypocrisy has replaced honesty.

The United States Supreme Court will almost certainly overrule the Colorado Supreme Court’s decision – perhaps unanimously – and the Court will likely rely on, among other things, the lack of procedural due process afforded to Trump. In so doing, the Court should emphasize that the people, not the courts, should decide who becomes the next President of the United States. And if the people elect Donald Trump, so be it. It is preferable to have the people elect a candidate that you do not support than to have a court enable through dishonest means the election of a candidate that you do support.

After all, you believe in democracy, don’t you?

[1] See Anderson v. Griswold, available at: 23SA300.pdf (state.co.us)

[2] See U.S. Const., Amend. XIV, Section 3.

[3] See Trump v. Anderson, Amicus Brief, amicus brief of Johs Blackmun amicus brief) available at: 20240109145107356_23-719 Amicus Brief Professors Barrett and Tillman Final.pdf (supremecourt.gov)

[4] See Trump v. Anderson, Amicus Brief of Kurt T. Lash, available at: 20240116095552269_23-719 tsac Lash.pdf (supremecourt.gov)

[5] See Jack Healy, The Are the Five People Who Died in the Capitol Riot (Jan. 11, 2021), available at: These Are the People Who Died in the Capitol Riot - The New York Times (nytimes.com)

[6] See Brian Naylor, Read Trump’s Jan. 6 Speech, a Key Part of Impeachment Trial (Feb. 10, 2021), available at: Transcript Of Trump's Speech At Rally Before Capitol Riot : NPR

[7] See Brandenburg v. Ohio, 395 U.S. 444 (1969).

[8] See Naylor supra note 6, available at: available at: Transcript Of Trump's Speech At Rally Before Capitol Riot : NPR

[9] See Anderson, supra note 1, available at: available at: 23SA300.pdf (state.co.us) (Samour, J., dissenting).

[10] See id.

[11] See id.

[12] See, e.g., Justice Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (Vintage, 2006).

[13] See Lawfare, Tracking Section 3 Trump Disqualification Challenges, available at: Trump Disqualification Tracker | Lawfare (lawfaremedia.org)

[14] See Ed Mazza, George Conway Slams Trump With All-Too-Blunt Prison Prediction (Jan. 10, 2024), available at: George Conway Slams Trump With Blunt Prison Prediction | HuffPost Latest News

[15] See Alex Schemmel, Tacey Abrams Says She ‘Never Denied the Outcome’ of 2018 Election Despite Past Claims (Oct. 5, 2022), available at: Stacey Abrams says she 'never denied the outcome' of 2018 election despite past claims | WPDE

[16] See CNN, Hillar Clinton Calls Trump ‘Illegitimate President,” available at: Hillary Clinton calls Trump 'illegitimate president' | CNN Politics

[17] 597 U.S. 215 (2022)

[18] 600 U.S. 181 (2023)

[19] See Eric Kaufmann, We Have the Data to Prove It: Universities are Discriminating Against Conservatives (March 5, 2021), We Have the Data to Prove It: Universities Are Discriminating Against Conservatives | Opinion (newsweek.com)

February 3, 2024 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Monday, January 29, 2024

In Memoriam Charles Fried

I was sad to hear about the recent passing of longtime Harvard Law Professor Charles Fried. I had been surprised (and impressed) to learn that Prof. Fried had retired from teaching just last semester. When I took Constitutional Law from Prof. Fried two decades ago, he had already been on the faculty for 40 years.  I am glad to know that many more students had the opportunity to learn from him.

Others have written ably about Prof. Fried’s impressive life and career. As a first-generation law student, I recall being awed by his impressive resume. It was always exciting when he started our class discussion about a case with the words, “When I argued this case at the Supreme Court . . .”  As a former Solicitor General, he could use that phrase often. But rather than repeat what others have written, I wanted to share my favorite Prof. Fried story—the story where Prof. Fried gave me some of the best advice I received in law school.

Sometime during my 2L year, I decided that I wanted to apply for judicial clerkships. Not knowing much about the process, I thought that my clerkship chances would improve if I asked my most famous professor to write a letter of recommendation. Prof. Fried easily fit that bill. He also served as the faculty advisor to the Harvard Law Federalist Society, and I was actively involved in the organization. I arranged a meeting with him to request the letter. I recall being nervous as I approached his office—I was not one to visit office hours.  I reminded him of my name and respectfully asked for a letter. Prof. Fried kindly agreed to write a letter, but then explained that because I hadn’t talked a lot in class and didn’t have an especially high grade (both statements were true), my letter would not be that strong. He then gave me the key advice. He said that I might be better off asking someone who knew me better to write a letter.  I thanked him and said either that I would do that or that I would let him know (I can’t quite recall which).  Then I left his office.

I took his advice.  I requested other letters, applied for clerkships, and spent an amazing year clerking at the federal appellate level.

Now, some might read this and think that Prof. Fried’s advice was a bit harsh. It wasn’t. I remember him being nothing but gracious and kind as he shared his thoughts. Now as I professor, I understand even more where he was coming from. Writing letters of recommendation can be hard, especially when you don’t have much to say about the student. And judges prefer letters from recommenders that can speak to the skills that would make you a good clerk. Not talking in class and getting a mediocre grade don’t fall into the quality clerkship skills category.

Further, I have had the opportunity to share his advice with countless law students as I counsel them about clerkships. For my entire decade teaching I have preached the value of clerkships to students—recently writing a book on the topic. As I share the steps that they will need to take to apply for a clerkship I can encourage them to build relationships with professors and employers that will lead to good letters of recommendation—letters that speak to the skills that will make them a stellar law clerk.

I will always be grateful to Prof. Fried for his advice. My thoughts are with his family. Requiescat in pace.

January 29, 2024 | Permalink | Comments (0)

Sunday, January 28, 2024

A Few Lessons from the Briefing in Trump v. Anderson, the Ballot Eligibility Case before the Supreme Court

Not just appellate eyes, but the eyes of the country, are likely to be trained on the Supreme Court on February 8, when the justices will hear Trump v. Anderson, the case from the Colorado Supreme Court that held former President Trump ineligible under the Fourteenth Amendment’s Section Three to be placed on the Colorado Republican Primary Ballot because of his actions in connection with the infamous January 6 assault on the Capitol as electoral votes were being counted in 2021.

The Petitioners’ briefs, along with their amici, were filed by January 18. Although the Respondent’s Brief was filed January 26, supporting amicus briefs are not due until January 31. In full disclosure, I am filing one on behalf of Professor Kermit Roosevelt of the University of Pennsylvania’s law school.

The briefs filed revealed interesting strategic choices and provide instructive examples of how to use the same  historical examples, same words spoken during the congressional and ratification debates, and same precedents to opposing effects.

For this post, I want to primarily focus on choices made by the advocates. As every appellate advocate knows, it is prudent to put your best argument first. If that argument is weak, it has an adverse effect on the subsequent arguments. So how did the parties open their briefs?

Trump’s brief begins with the argument that the “president is not an ‘officer of the

United States.’” If the Court accepts that view, the case is over. That might seem to make it a good choice as an opening argument. Yet, the Colorado Supreme Court treated it as an extraordinarily weak one. That court found it impossible to believe that those who framed the Fourteenth Amendment were determined to assure that minor officeholders did not return to their minor offices, but that it was of no concern that the most powerful figure in American government could violate an oath to the Constitution in precisely the same manner and still regain that office.

To explain more fully, Section Three of the Fourteenth Amendment disqualifies those have “previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States.” The essence of disqualification, then, is that breaking an oath to support the Constitution disqualifies a person from office.

The argument his lawyers posit is that Trump can only be ineligible if the president qualifies as an “officer of the United States.” Members of Congress are mentioned, as well as other elected officials, but those not specified must be deemed “officers of the United States.” The brief argues that the term is a constitutional word of art that only applies to people the president appoints to office or commissions, as in the military – and the president cannot appoint or commission himself to an office.

In making the argument, Trump’s lawyers seek to appeal to the same justices who have were in the majority in decisions that cut back on the administrative state. In these modern precedents that found fault with the lack of accountability for independent agencies because their leaders could not be fired by the president, the Court has referred to “officers of the United States” as appointees, rather than as elected officials. Leading with this argument is a bid to use those precedents for another purpose, which is why it leads and takes up considerable real estate in the brief.

The Colorado State Republican Central Committee (CSRCC), another party on the same side as Trump, also begins its brief with this argument, apparently having made the same calculation. It, however, adds an additional twist. It argues that the president oath of office, which is prescribed by the Constitution, and requires a pledge to “preserve, protect and defend the Constitution of the United States,” cannot have the same consequences as breaking an oath to support the Constitution. The difference between preserve, protect and defend and support seems like the proverbial distinction without a difference, but the CSRCC contends that it ties back to the fact that the oath-breaking that disables only a person who is an “officer of the United States.” As slim a reed as this is to hang upon, the CSRCC attempts to support its argument by making a concession. If Trump had served as a senator, representative, or governor before he became president, the result in this case could be different because those oaths trigger for Section Three’s application. But because he never held public office beforehand, the presidential oath is not one that gives rise to ineligibility. It remains to be seen if anyone salutes that flag.

The Respondents made several strategic choices in response. Just as the opening briefs should start with an advocate’s strongest points, the responsive brief should as well, rather than simply adopt the order of an opponent. It should be noted that there will be no reply briefs. Their first choice was to review the extensive evidence introduced at trial on why Trump’s conduct qualifies as fomenting an insurrection. (Trump’s brief follows his first point with an argument that he did not engage in insurrection, relying on his counterevidence.).

The choice to begin with the events of January 6 and Trump’s actions remind the justices of how serious the attack was that day and what it sought to accomplish, events and intentions that may have faded during the subsequent three years. The Respondents also intersperse color photographs from that day, enabling the justices to recall the seriousness of the attack.

Then, having established the factual predicate, the Respondents proceed to argue that an “insurrectionist president” is ineligible under Section Three. The use of that term, “insurrectionist president” is a calculated one. It establishes the abstract proposition that the Framers of the Fourteenth Amendment could not have intended that the presidency was available for someone of that ilk. Indeed, much of the debate around this provision had various members of Congress expounding on how it would keep the Confederacy’s Jefferson Davis out of the presidency. The Respondents also remind the Court that the presidency is referred to as an “office” in the Constitution 20 times, so that office or officer need not be an exclusionary term.

It suffices to say that both sides have employed appellate advocacy tactics that this blog has discussed many times. I plan to be in the courtroom February 8 to see how those techniques are deployed during oral argument.

January 28, 2024 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Writing, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Saturday, January 20, 2024

An Appealing Definition of Persuasion

Happy 2024!  I hope you are off to a productive and healthy new year. 

In my classroom, we started the new year with a move to persuasive writing.  I began class with a discussion of some differences between argument and persuasion.  My students and I also discussed whether using a focus more on persuasion—and not just argument—might help us a tiny bit as we navigate these times of intense political and social division.  Of course, we have no answers for our national debate, but we agreed using the most appealing communication possible will make us the most persuasive advocates, hopefully helping us rise above mere loud argument.  

In class, we drew a distinction between baldly setting out claims for a client as “argument” and using appealing language to convince a tribunal to rule for the client as “persuasion.”  We reviewed argument as “the act or process of arguing, reasoning, or discussing,” as Merriam-Webster explains, noting some definitions include the idea of an “angry quarrel or disagreement.”  See https://www.merriam-webster.com/dictionary/argument.  Then, I suggested my definition of persuasion.  I asked students to consider persuasion in appellate writing as “an attempt to modify behavior through appealing communication, which is organized, supported, clear, and always honest.”  We stressed the need for credibility, and also for communication that appeals with calmer language and clear connection to law and facts.  (For similar definitions, consider Dictionary.com’s explanation of “persuade” and “persuasion” as including “inducement” to “prevail on (a person) to do something, as by advising or urging.”  See https://www.dictionary.com/browse/persuasive;https://www.merriam-webster.com/dictionary/persuasive.)

You might be thinking that some differences in these definitions of argument and persuasion are in the eye of the beholder, making part of this argument-persuasion idea a distinction without a difference.  Plus, many articles and books on appellate writing stress the need for advocates to avoid conclusions and instead persuasively explain precisely why courts should rule for their clients.  On the other hand, I have seen students approach appellate writing differently based on their concepts of persuasion and argument, prompting me to share this reminder on persuasion. 

Under changes the legislature made to California’s Education Code a few years ago, students in the public schools near my home no longer learn “persuasive” writing.  Instead, they focus on “argument” and what the Ed Code calls “argumentative essays.”  https://www2.cde.ca.gov/cacs/ela?c2=17%2C8%2C9%2C9&c0=2.  Often, these argumentative essays can use “evidence” from opinion or experience, see id., and my sons’ public school teachers emphasized argumentative word choice and strong presentation of the writers’ views.

When the graduates of this approach started trickling into my law school classes, I noticed these California public school students were better than some past students at crafting interest-catching  intro hooks, something I also stress in my persuasive writing teaching.  However, I soon realized several of these students also wrote first drafts less focused on deep analysis.  Too often, their writing had a harsh, argumentative tone but weak connections to the key parts of the precedential cases.  This interesting difference made me think more about how the way we understand the role of our briefs’ “Argument” sections underpins the entire way we draft those briefs.  

While the California Ed Code approach allows connections to supporting “evidence,” I believe the ability to use opinion as evidence undercuts this approach.  Thus, too many of my students who learned high school writing under the new Ed Code initially focused more on their own opinions than on true support from case law.  Their papers suggested a result on appeal based on their analysis of the facts only.  In other words, students engaged in bare arguments simply saying clients should win because of X facts, instead of using persuasion showing how courts should rule for clients based on the way other courts ruled on X and similar facts.  

I see only a handful of students a year from local public schools (or any other schools), and thus I have a very small sample.  Moreover, these students are often quite grateful for constructive criticism and are very open to learning more concrete ways to persuade with appealing, deep connections to our cases.  Nonetheless, the way I saw the California Ed Code change students’ focus helped me see the need to define persuasion expressly. 

Taking this lesson from my students, I do my best to think of genuine persuasion and not only argument as I write.  As you craft your own appellate arguments, hopefully this new twist on the reminder to always persuade and not simply state conclusions will be helpful to you as well.

January 20, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Friday, January 19, 2024

Appellate Advocacy Blog Weekly Roundup Friday, January 19

WeeklyRoundupGraphic

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

SCOTUS Opinions and News:
 
Federal Appellate Court Opinions and News:
 
Appellate Practice Tips:
 
Appellate Jobs:

January 19, 2024 in Appellate Advocacy, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)