Appellate Advocacy Blog

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

Friday, June 12, 2020

Addressing Bias in Our Briefs and in the Legal Writing Classroom: If You Want Peace, Work for Justice

Like so many of us, I have spent the last few months worrying.  I have been very worried about my law students’ physical and mental well-being.  As a parent, I’m losing sleep over concerns for my high-school and college-aged children.  But for the last two weeks especially, I have been incredibly anxious about the lack of justice in our country. 

As a teen, I loved the statement, “if you want peace, work for justice.”  I did not know then the phrase has roots in Christianity, Islam, and Judaism, but I knew it made sense.  See, e.g., Ronald C. Smith, If You Want Peace, Work for Justice, 16 Crim. Just. 1, 2 (ABA Fall, 2001) (using the phrase to call for justice after 9/11 and discussing the role of the criminal justice bar in ensuring freedoms and liberties to bring peace); Samuel J. Levine, The Broad Life of the Jewish Lawyer: Integrating Spirituality, Scholarship and Profession, 27 Tex. Tech L. Rev. 1199, 1206-09 (1996).  To me, one small way we can all start to make changes for more justice is by being more intentional in discussing bias in our writing, practice, and teaching. 

As appellate lawyers, we often have a good overview of problems in the trial court, and sometimes we can see racism and bias as well.  While we cannot present something beyond the record in a brief, we can do better at discussing what the record supports, and in having painful conversations with our trial counsel and clients.  Our courts have been increasingly willing to discuss bias, and one recently stressed the need to take “teachable moments” to end bias.  See Briganti v. Chow, 42 Cal. App. 4th 504, 510-13 (2019); Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019).   We too should advocate for professionalism, and against bias, in our practice.  Of course, this is easier said than done, and our obligation is to our client, but if we start more conversations about what happened at trial and seize more opportunities to start a dialogue on professionalism, we will be working for justice.

Moreover, as legal writing teachers, we have great opportunities to include discussions of racism in our work.  In doing so, we need not stray from our “assigned” role as writing teachers, since we also have an obligation to teach ethical practice as part of legal writing and analysis.  In fact, we already stress important topics of professionalism in myriad ways.  For example, many of us use cases on disbarment when we teach case briefing, and discuss the results of missed deadlines or failure to follow court rules as part of our teaching for memos and briefs.  Additionally, I used problems on curing attorney errors for my trial brief problems for years.  Now, we can include cases leading to discussions of bias as well.  Using problems based in some legal areas, like Fourth Amendment pretextual stops and Title VII discrimination, will easily lead to discussions of racism and how writers and lawyers can address injustice.  Using problems based in other substantive areas, like false imprisonment or real property, can create wonderful openings for discussing implicit bias and raising awareness, all while teaching crucial legal analysis and writing skills.  I am not suggesting professors should or should not share their own views in these discussions, I am just noting a discussion of bias in the law and legal profession is a logical and important part of the ethical issues we already teach. 

As Ronald Smith said of working for justice to bring peace:  “think of another saying, ‘It is better to light one candle than to curse the darkness.’ [When] we seek justice each of us lights candles, [and] light[s] the way for others to see how they . . . can light candles and work for justice, too.”   Smith, If You Want Peace, Work for Justice, 16 Crim. Just. at 3.

I wish you all good health and less worry, with hopes for a more just future.

June 12, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Legal Ethics, Legal Profession, Legal Writing, Religion | Permalink | Comments (0)

Sunday, February 16, 2020

Resolving the Tension Between Religious Liberty and Equality

In Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the Court confronted the issue of whether the Free Exercise Clause of the First Amendment permits a business owner to refuse service to individuals – in violation of a state anti-discrimination statute – if providing such service would violate the business owner’s religious beliefs.[1] By way of background, the Petitioner, a small business owner in Colorado, refused to bake a wedding cake for a same-sex couple because doing so would have violated the business owner’s religious beliefs.[2] The Respondent, Colorado Civil Rights Commission, later held that the business owner’s refusal to serve the same-sex couple violated Colorado’s anti-discrimination law. In so holding, the Commission rejected the Petitioner’s religious liberty claim.

Unquestionably, Masterpiece Cakeshop Ltd. implicated the tension between liberty (i.e., permitting individuals to freely exercise their religious beliefs) and equality (i.e., the statutory and, in some situations, constitutional right to freedom from discrimination), and underscored the difficulty in balancing these competing interests. Indeed, how should this tension be resolved and what standard or criteria should be adopted to guide lower courts in future cases?

In its decision, the Court did not answer these questions. Instead, the Court issued a narrow decision in which it held that the Colorado Civil Rights Commission’s decision was procedurally unfair because the Commission displayed impermissible hostility toward religion during the hearing.[3] Thus, the underlying legal issue remains unresolved, although it will likely only be a matter of time before the Court again confronts this question.

The purpose of the Free Exercise Clause, and the Court’s jurisprudence, has established several principles that may help to address the question presented in Masterpiece Cakeshop Ltd. and guide lower courts in future cases.[4] To begin with, a core purpose of the Free Exercise Clause is to ensure that individuals can freely exercise their religious beliefs without undue interference, and absent coercion or fear of reprisal. Indeed, the right to religious freedom is essential to safeguarding individual liberty. As Justice Sandra Day O’Connor stated in City of Boerne v. Flores, “[g]iven centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude that both should be treated with the highest degree of respect.”[5]

Importantly, however, the right to religious freedom is not absolute. In limited circumstances, laws infringing on religious liberty will be upheld if they further compelling government interests, are narrowly tailored, and constitute the least restrictive means of achieving the stated interests.[6] The Court’s jurisprudence has established several principles that clarify the extent to which the government may restrict religious liberty.

First, the Court distinguishes between religious beliefs and practices, the latter of which is subject to restriction. As the Court held in Reynolds v. United States, “[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”[7]

Second, any law that coerces individuals into acting contrary to their beliefs violates the Free Exercise Clause. In Lyng v. Northwest Indian Cemetery Protective Ass’n, the Court emphasized that states “may make it more difficult to practice certain religions,” provide that state laws “have no tendency to coerce individuals into acting contrary to their religious beliefs do.”[8]

Third, states may not enact laws that target specific religions or religious practices. For example, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court invalidated a law banning the ritual sacrifice of animals because the record indicated that the law was aimed at suppressing core aspects of a worship service conducted by the Santeria religion.[9] As Justice Anthony Kennedy explained, states “may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.”[10]

Fourth, and perhaps most significantly, in Employment Division v. Smith, the Court held that generally applicable laws do not violate the Free Exercise Clause if they only incidentally burden religious practices.[11] Writing for the majority, Justice Antonin Scalia stated that “[i]t is a permissible reading of the text … to say that if prohibiting the exercise of religion … is not the object … but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.”[12] The Court’s holding in Smith overruled its prior decision in Sherbert v. Verner, where the Court held that individuals may seek exemptions from laws that infringe on their religious freedom.[13]

In response to Smith, Congress enacted the Religious Freedom Restoration Act, which states that any law resulting in a “substantial burden” on religious practices violates the Free Exercise Clause unless it furthers a compelling governmental interest and is the least restrictive means to achieve that interest.[14] However, in City of Boerne, the Court held that the Act does not apply to the states.[15] Thus, in Masterpiece Cakeshop, the Act was not relevant to the Court’s decision.

Ultimately, it is difficult to predict how the Court will rule when, in all likelihood, it is confronted with this or a very similar issue in the future. In Masterpiece Cakeshop Ltd., Justice Kennedy suggested that “while … religious and philosophical objections are protected … such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”[16] However, Justice Kennedy retired from the Court in 2018 and it is by no means certain that his replacement, Justice Brett Kavanaugh, or the majority of justices, would agree with this proposition.

If the Court does decide this issue in the future, Smith will be highly relevant. Specifically, the justices will likely address whether Smith should be overruled or modified. If the justices decline to overrule Smith, they will probably consider whether the law at issue only incidentally burdens religious liberty or is sufficiently burdensome that it violates the Free Exercise Clause. Additionally, the Court will likely examine whether the law coerces individuals into violating their religious beliefs or impermissibly targets specific religious practices.

As stated above, it is difficult to predict how the Court will rule. Whatever the result, the Court will hopefully adopt a workable standard that clarifies the appropriate balance between liberty and equality, and that effectively guides lower courts, thus avoiding confusion regarding how these interests are balanced in future cases. However, given the fact-specific nature of cases in this area, the Court’s desire to maintain institutional legitimacy, and its understandable reticence to issue broad and sweeping decisions, the Court will most likely issue a narrow ruling that leaves to the lower courts the task of clarifying and developing the law in future cases.

[1] 138 S. Ct. 1719 (2017).

[2] See id.

[3] See id. (Specifically, the Court highlighted the following language as evidence of the Commission’s hostility toward religion: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others”). 

[4] U.S. Const., Amend. I (providing in relevant part that “Congress shall make no law … prohibiting the free exercise [of] religion”).

[5] 521 U.S. 507, 564-65 (1997).

[6] See id. at 555 (O’Connor, J., dissenting) (“[T]he right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes”).

[7] 98 U.S. 145, 166 (1878).

[8] 485 U.S. 439 (1988).

[9] 508 U.S. 520 (1993).

[10] Id. at 547.

[11] 494 U.S. 872 (1990).

[12] Id. at 878.

[13] 374 U.S. 398 (1963).

[14] 42 U.S.C. § 2000bb-1(a)(2012).

[15] 521 U.S. 507.

[16] 138 S. Ct. 1719 (2017).

February 16, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Religion, United States Supreme Court | Permalink | Comments (0)

Tuesday, November 19, 2019

Narrative Arguments Built on the Sand

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I have mentioned in past blogs the importance of the "narrative paradigm" in communications theory. In a nutshell, this theory argues that there is more to persuasion than the logic of your argument. Instead, the "truthiness" of an argument can be compelling, regardless of its objective merits, when it matches the life-experiences and biases of the reader or listener.

In legal writing, we often use allusions, or even meme-like story indexes, in order to quickly hijack the meaning behind a certain story or narrative to fit our needs. This often takes the form of biblical parables in an attempt to quickly convey the "truthiness" of a statement. The parable of the two builders, one who builds on sand and another who builds on rock, for instance, is cited in several cases. The gist of the parable being that if you do not have a good foundation, you cannot build a lasting structure or legal argument.

Citing to the parable, courts often make this comparison. Thus, "a motion built on speculation and conjecture will rarely withstand the winds of scrutiny." Barnette v. Grizzly Processing, LLC, 2012 WL 1067076, *1 (E.D. Ky. Mar. 28, 2012) (unpublished). Or "using the common law as the basis for reasoning, is like building a house upon the sands instead of upon the rock." Ex parte Estep, 129 F.Supp. 557, 558 (N.D. Tex. 1955). Or, even more simply, "[t]he argument is as insubstantial as a house built upon the sand." Russel v. Gonyer, 264 F.2d 761, 762 (1st Cir. 1959).

We all think we get the gist of this parable - that you must have a firm foundation in your home, life, or argument, or it will all fall apart when tested. But most of us don't really understand what it originally meant.

Ray Vander Laan, a theologian with extensive time and training in the middle east, has pointed out that this understanding of the parable is most likely incomplete. In the part of the world that this story was first circulated, the people lived in a rocky desert, where the rocks occasionally give way to even, sand-covered wadis. The floor of a wadi would be the easiest place to build. It would also be the most foolish, because wadis flood in a very predictable and eye-catching fashion:

This cultural knowledge changes the meaning of the well-known parable. It isn't just foolish to build on sand because sand shifts - it is insane to build on sand, because the house will inevitably flood and be destroyed.

This illustration is important for more than just the biblically minded. It shows that the power of a story depends on its understanding, and that this understanding can shift and change over time and cultures. That means that when we reference allusions, or reference stories, we need to make sure that our readers will have the same understanding as ourselves.

Now, as long as our intended meaning meets the understanding of our audience, it does not really matter that the original meaning was something different. Thus, the quotations above still work, because the general understanding of the parable is that a shifting foundation is bad. It is only if we were communicating with the original audience that meaning would be lost.

But this story serves as a reminder that our storytelling is only effective when we know that our audience is going to understand it. I have commented before about how obscure literary references might be admirable, but ineffective if the reader has no reference to the work. Understanding the audience, and their reception of a particularly story index or allusion is necessary to properly telling the story. To paraphrase a well-known marketing book, "To be successful... today, you must touch base with reality. And the only reality that counts is what's already in the [audience's] mind." Al Ries & Jack Trout, Positioning: The Battle for Your Mind 5 (rev'd ed. 1986).

This is not relevant just to the use of existing narratives, but to the stories you put together in your briefing. Remember that you may know the entire case and every detail, but that the court only knows what your present to them in the record. In order to make sure they hear the story you know, you must be sure to preserve all of the pieces of that story (by ensuring that all of your evidence makes it into the record at the trial level) and that you then present, on appeal, a complete narrative that contains each event or fact that makes your client's story persuasive. This includes facts that may not seem even legally relevant, but that are relevant to your audience.

In short, be sure you know what is in your audience's mind before you rely on narrative references to persuade them. Otherwise, you will be building an argument on shifting sand. And everyone knows that's a bad idea.

(Image source: Pieter Bruegel the Elder, The (Greater) Tower of Babel (Vienna), 1563)

 

 on speculation and conjecture will rarely withstand the winds of scrutiny.

Barnette v. Grizzly Processing, LLC, No. CIV. 10-77-ART, 2012 WL 1067076, at *1 (E.D. Ky. Mar. 28, 2012)
a motion built on speculation and conjecture will rarely withstand the winds of scrutiny.

Barnette v. Grizzly Processing, LLC, No. CIV. 10-77-ART, 2012 WL 1067076, at *1 (E.D. Ky. Mar. 28, 2012)
a motion built on speculation and conjecture will rarely withstand the winds of scrutiny.

Barnette v. Grizzly Processing, LLC, No. CIV. 10-77-ART, 2012 WL 1067076, at *1 (E.D. Ky. Mar. 28, 2012)
a motion built on speculation and conjecture will rarely withstand the winds of scrutiny.

Barnette v. Grizzly Processing, LLC, No. CIV. 10-77-ART, 2012 WL 1067076, at *1 (E.D. Ky. Mar. 28, 2012)

November 19, 2019 in Appellate Advocacy, Appellate Practice, Legal Writing, Religion, Rhetoric | Permalink | Comments (0)

Tuesday, February 19, 2019

Masters of Allusion

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As appellate writers, we are painfully aware of the fact that our readers aren’t terribly fond of our work product. Judges tell us that our briefs are simply tools, and that they are tired of trudging to chambers with boxes (or ipads) full of briefs that are too wordy, too obscure, and just too painful to read to be of much use. Judges, meanwhile, are accused of writing opinions that are too wordy, too obscure, and inaccessible to anyone but other attorneys.

It is understandable, then, that legal writers both on and off the bench try to liven things up. Like Ralphie in A Christmas Story, lawyers dream of turning in a piece of writing that, through shear skill, will temporarily lift our readers from their depression and convince them to joyfully deliver us our (client’s) wishes.

The use of literary allusion can help us make our writing more lively and informative. Allusions can build our credibility, illustrate the rightness of our position, and make our writing more accessible. But it is a two-edge sword: If used poorly, it can cause the reader to lose what little interest they had in our argument and even obscure our meaning.

Literary allusions can be very effective tools in legal writing.

The use of literary allusions is not universally praised. Indeed, Judge Posner, in his articles and book on the subject, Law and Literature, considers literature of little use to jurists, other than to serve as examples of good writing style. Nevertheless, most persuasive writing experts would argue that there are good rhetorical reasons to use literary allusions.

Aristotle identified three prongs of persuasion: ethos (credibility), pathos (emotional appeal), and logos (logical reasoning). Reference to literary allusion can assist with all three.

First, reference to “great” works can enhance the moral authority of the writer. Merely referencing Homer, Shakespeare, or a religious work such as the Bible, can confer some of the moral authority and weight of those works to the author. It can also demonstrate that the author is well read, and thus all the more to be trusted.

Second, quotations from literature can tie the emotion of the quoted work to the legal argument, invoking pathos. We are all taught to write narratively, because we are all storytellers and listeners by nature. Tying our characters to those of a great work ties the emotions inherent in those works to our characters.

Finally, allusion can help tie together a legal argument by way of illustration. There some general propositions that are difficult to state under stare decisis, but which seem immediately right when viewed through the eyes of literature. Thus, Aristotle invoked Sophocles’ Antigone to support his argument that respect for the dead is a universal law, as did Justice Kennedy, over 2000 years later. See Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 168 (2004).

Make sure the allusion agrees with the law.

Justice Oliver Wendell Holmes wrote in his famous essay, The Path of the Law, “[t]he law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.” 10 Harvard L. Rev. 457, 469 (1897). These boundaries have often been made apparent when allusions to moral works conflict with statutory sentencing schemes.

For instance, the Fifth Circuit had to step in and correct a criminal defendant’s sentencing when it was based on reference to Dante’s circles of hell rather than the sentencing guidelines. See U.S. v. Andrews, 390 F.3d 840, 850 n.23 (5th Cir. 2004) (“The district court seems more comfortable with sentencing Andrews based on Dante’s levels of hell, but such a sentencing scheme has not been accepted as the law in this or any other federal circuit.”). Dante’s opinions notwithstanding, it was the duty of the court to apply the law, not literature.

Nevertheless, there are times when literature can inform the sense of justice upon which the law is built. Thus, the Seventh Circuit permitted a judge to rely (in part) on Dante’s Inferno in refusing a federal prosecutor’s recommendation to depart downward from sentencing guidelines because, even though the refusal to depart was stated to be based, in part, on literature rather than law, this was merely a reflection of the discretion vested in the trial judge by the guidelines. See U.S. v. Winters, 117 F.3d 346, 348, 350 (7th Cir. 1997).

The lesson? Literary allusions can lend force to a legal argument, but they should not supplant it.

Let the reader discover the allusion.

It is often best to let the reader discover the answer themselves. This is particular true with allusions. A quotation often will have less force than the sudden recognition that you are inviting the reader into the argument based on their own experiences.

Bryan Garner, in his A Dictionary of Modern Legal Usage, gives an excellent of example of subtle allusions in legal writing. He cites to the dissent of Justice Robert W. Hansen of the Wisconsin Supreme Court, in Jones v. Fisher, 166 N.W.2d 175 (Wis. 1969) where he wrote: “The road that has brought us to the present state of affairs in regard to punitive damages in Wisconsin courts is a long one, paved with good intentions.” Id. at 182. As Garner notes, this formulations subtly suggests that the line of authority is a road to hell, allowing the reader to reach that conclusion themselves. Had Justice Hansen stated the aphorism directly, it would have been less effective.

Be sure the reader will recognize the allusion, or can understand the point if not.

When we communicate with someone, there is much more being communicated than the words we choose. We are also communicating through filters, and those filters include our shared experiences. Literary allusions, at their best, add to our communications through reference to the experiences writer and reader share in having read the same works.

In using allusions, then, we need to be careful not to obscure the text for the reader who is not familiar with the work. That was the conclusion of the late, great, Charles Alan Wright, when he concluded that it was safe to use allusions in briefs and other legal writings only so long as the text is intelligible even if the reference is not understood. See Literary Allusion in Legal Writing: The Haynsworth-Wright Letters, 1 Scribes J. Legal Writing 1 (1990).

Wright’s example leading to this conclusion is instructive. Wright was taken by the use of Justice Friendly of a reference to a “legal Lohengrin,” because it captured the essence of his legal argument so well by comparing an obscure statute to the character from a Wagnerian opera who depended on the obscurity of his own identity. Judge Haynsworth responded, however, by noting that the reference was itself obscure, and asked: “Should a judge write for the Charlie Wrights or for young law clerks preparing legal memoranda for the use of junior partners in advising clients?” Id.

We should keep the same question in mind. Particularly in a multi-cultural world with changing educational standards. Feel free to use allusions, but err on the side of caution when it comes to obscure ones, and be sure to sufficiently explain yourself to those who do not share the same reading experience.

Take a note from Justice Ginsberg, who made a Biblical allusion without any expectation of biblical scholarship, and then explained exactly what she meant:

No man can serve two masters. If you are negotiating a contract, a lawyer does not represent both clients. That is all that is involved here.

NLRB v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 595 n.14 (1994).

Sometimes allusions can draw the sting out of a rebuke

Finally, I leave you with an allusion born from kindness. There are times when an appellate court has to note a clear mistake made by the lower court, or, worse, an appellate attorney must point out an error made in the law that seems apparent in retrospect. Let me introduce you to a literary allusion that can help you make such a point while actually complimenting the party that made the mistake.

Homer, the author of the Iliad and the Odyssey, two foundational works that should still be at least recognizable to our readers, was known to make mistakes. Indeed, Homer killed a character earlier in one of his texts and then used the same character later, fully alive, in apparent error. This led the Roman poet Horace to write that “even the noble Homer sometimes nods.”

Now, telling someone they made an obvious error is a delicate task. Comparing them to one of the most famous authors of all time while doing so, however, draws the sting a bit.

When Justice Cardamone was tasked with telling the district court judge that the Second Circuit had already set out the law of the case in a prior appeal, and that law had not been followed, he used this literary reference in his opening:

When one of the cases of this consolidated appeal was before us seven years ago, we set out some guidance on the law, which the district court [sic] either misinterpreted or missed. If the latter, such forgetfulness is understandable because we know that even Homer nodded.

Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 219 (2nd Cir. 2006).

While some judges might disagree about the effectiveness of literary allusion, I doubt anyone would complain about being corrected in this gentle manner.

(The author wishes to credit John M. DeStafano III, On Literature as Legal Authority, 49 Ariz. L. Rev. 521 (Sept. 2007) for inspiring this article. Image credit: Matt Buck / CC-BY-SA-4.0).

February 19, 2019 in Appellate Advocacy, Books, Legal Writing, Religion, Rhetoric | Permalink | Comments (1)