Appellate Advocacy Blog

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

Tuesday, May 14, 2024

Priming for Persuasion

One of the most powerful tools in an advocate’s toolbox is the psychological concept of priming.  Priming “occurs when an individual’s exposure to a certain stimulus influences their response to a subsequent prompt, without any awareness of the connection.”[i]  In other words, “[p]riming plants a seed in the brain [that] . . . causes us to form an impression that we then use to interpret new information.”[ii]

For example, in one famous research study, participants were exposed to a list of words associated with either adventurousness or recklessness.[iii]  The participants were then provided with a story involving a protagonist whose behavior was ambiguous with respect to those traits.[iv]  When later asked to characterize the protagonist’s behavior, participants were more likely to characterize the behavior consistent with the traits reflected in the words they were exposed to before reading the story.[v]

The concept of priming involves the inner workings of long-term memory.[vi]  Our long-term memory creates units known as “schemas,” which allow us more efficient access to memories by activating them through associated sights, smells, and sounds.[vii] “Priming suggests that certain schemas are activated in unison, which leads to related or connected units of information being activated at the same time.”[viii]

There are many kinds of priming[ix] that are relevant in legal writing, and among them are the following:

  • Semantic priming—the association of words in a logical or linguistic way[x]
  • Repetition priming—the repeated pairing of stimulus and response[xi]
  • Perceptual priming—the perception of similarity between two things that may not, in fact, be similar[xii]

For semantic priming, think about rhetorical devices, such as parallelism, alliteration, anaphora, epistrophe, or metaphor to name a few.[xiii]  A famous example is Martin Luther King Jr.’s statement, “Injustice anywhere is a threat to justice everywhere.”

For repetition priming, there’s no better public example than Donald Trump’s approach to Robert Mueller’s investigation into potential ties between Trump’s 2016 campaign and Russia.  Over the course of more than two years, when tweeting about the investigation, Trump used the phrase “witch hunt” more than 160 times.[xiv]  A survey conducted around the same time revealed that, while roughly 60% of adults wanted the investigation, half had “‘just some’ or no confidence that a final report . . . would be ‘fair and even-handed.’”[xv]  Additionally, despite the majority support for investigation, 46% of respondents nevertheless believed it would go “too far,” and support for impeachment fell throughout the same time period.[xvi]

For perceptual priming, consider the recent cases of NetChoice v. Paxton and Moody v. NetChoice, wherein the Supreme Court considered the constitutionality of laws in both Texas and Florida designed to regulate how social media companies control content posted on their sites.[xvii]  The states argued that social media platforms are common carriers who may not arbitrarily discriminate against users’ speech,[xviii] while the social media companies argued that social media platforms are “traditional media” requiring “editorial discretion over the expression they disseminate.”[xix]  Though social media is truly neither of those things, the parties sought to have the Court perceive social media to be like the one more favorable to their respective positions.[xx]

Priming is persuasive because the connection is made subconsciously by the reader, and readers tend to trust their own conclusions above others.[xxi]  This is sometimes referred to as “‘the ownness bias’ or the tendency of ‘audience members to consider their own thoughts to be stronger than message arguments.’”[xxii]

Here’s where you can use it in your writing:

  • Issue framing. Consider the abortion context; the issue could be framed as either protecting individual reproductive autonomy or protecting the rights of unborn persons.  By framing the issue favorably to your position at the outset, you are priming your audience to view the case through your chosen lens.
  • Factual opening. Imagine a case involving student speech that led to some kind of disruption at school.  The competing values are a student’s First Amendment right to free speech and the school’s compelling interest in a safe and orderly learning environment.  If you represent the student, you want to open your facts section with a focus on the student and value of the speech the student made, thereby priming your audience to also value both the individual and the speech.  On the other hand, if you represent the school, you want to open with the facts underlying the disruption, priming your reader to see chaos and a justifiable need for school intervention.
  • Argument headings. State your argument headings assertively as the conclusions you want your audience to draw. For example, “Trial counsel’s decision to reject the alibi defense was a matter of reasonable trial strategy”; or “The state presented sufficient evidence of the defendant’s deliberation.” The headings prime your reader to view the analysis and legal authority as consistent with those conclusions.
  • Rule statements. When stating the applicable rules, begin with your position as the default outcome.  For example, when advocating in favor of summary judgment, establish granting the motion as the default position: “Summary judgment shall be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”  Or, when advocating against the entry of summary judgment, establish denial as the default position:  “Summary judgment should be denied unless the moving party establishes that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.”  Stating the rule with your preferred outcome as the default primes your audience to see your opponent’s position as the exception and yours as the rule.
  • Quotation introductions. Before offering the reader quoted language from either a legal authority, a written document, or witness testimony, prime the reader by summarizing what you want them to understand from the language.  For example,

At the evidentiary hearing, trial counsel testified that she strategically chose not to call the alibi witness because his testimony was inconsistent with the chosen justification defense:  “From the beginning, [the defendant] told me he acted in self-defense, and I think the jury would have been confused if we put his brother on the stand to say he was at a party across town the whole time.”

This kind of priming helps focus the reader’s understanding of potentially ambiguous quoted language favorably to your position and align it with your legal authority.

This list is by no means exhaustive, and priming can be used in each of these areas on both large and small structural scales, from general organization down to sentence structure and word choice.  Priming is an exceptionally powerful persuasive tool.  Both using it and recognizing it can make you a more effective advocate.

 

[i] The Decision Lab, Why do some ideas prompt other ideas later on without our conscious awareness?, available at: https://thedecisionlab.com/biases/priming (last visited May 13, 2024).

[ii] Kathryn M. Stanchi, The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader, 89 Or. L. Rev. 305, 307 (2010).

[iii] Barbara O'Brien & Daphna Oyserman, It's Not Just What You Think, but Also How You Think About It: The Effect of Situationally Primed Mindsets on Legal Judgments and Decision Making, 92 Marq. L. Rev. 149, 152 (2008).

[iv] Id.

[v] Id.

[vi] The Decision Lab, supra, note i.

[vii] Id.

[viii] Id.

[ix] Id.

[x] Id.

[xi] Id.

[xii] Dave Cornell, 15 Priming Examples (in Psychology) (Jan. 3, 2024), available at: https://helpfulprofessor.com/priming-examples-psychology/ (last visited May 13, 2024).  This site also contains information about additional forms of priming, such as associative priming, cultural priming, affective priming, and more.

[xiii] For definitions of these terms and other common rhetorical devices, see https://www.merriam-webster.com/grammar/rhetorical-devices-list-examples (last visited May 13, 2024).

[xiv] Madison Pauly, Are Trump’s Attacks on Mueller Working? (Jan. 27, 2019), available at https://www.motherjones.com/politics/2019/01/are-trumps-attacks-on-mueller-working/ (last visited on May 13, 2024).

[xv] Id.

[xvi] Id.

[xvii] Amy Howe, Social Media Content Moderation Laws Come Before the Supreme Court (Feb. 23, 2024), available at:  https://www.scotusblog.com/2024/02/social-media-content-moderation-laws-come-before-supreme-court/ (last visited May 13, 2024).

[xviii] Brief of Petitioners, Moody v. NetChoice, available at: https://www.supremecourt.gov/DocketPDF/22/22-277/291860/20231130111448519_2023-11-30%20Final%20NetChoice%20merits%20brief.pdf (last visited May 13, 2024).

[xix] Brief of Respondents, Moody v. NetChoice, available at: https://www.supremecourt.gov/DocketPDF/22/22-277/291860/20231130111448519_2023-11-30%20Final%20NetChoice%20merits%20brief.pdf (last visited May 13, 2024).

[xx] Howe, supra, note xvii.

[xxi] See Michael J. Higdon, Something Judicious This Way Comes . . . the Use of Foreshadowing As A Persuasive Device in Judicial Narrative, 44 U. Rich. L. Rev. 1213, 1225 (2010) (“studies show that when processing messages readers are more persuaded by conclusions that are implicit rather than explicit, especially when the reader is more involved in the communication”).

[xxii] Id.

May 14, 2024 in Appellate Advocacy, Appellate Practice, Legal Writing, Rhetoric | Permalink | Comments (0)

Tuesday, April 30, 2024

Lessons in Resilience from Moot Court

Dumier high tribunal of judges

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

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

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

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

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

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

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

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

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

Teddy Roosevelt is often quoted for saying:

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

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

April 30, 2024 in Appellate Advocacy, Law School, Moot Court, Oral Argument, Rhetoric | Permalink | Comments (1)

Saturday, April 20, 2024

An Argument Against Block Quotes

Recently, I saw a long listserv conversation about teaching first-year and LLM students to properly format block quotes. You might remember from your law review days that block quotes are long quotes of “fifty or more words.”  See The Bluebook, Rule 5.1.  Under The Bluebook and other citation manuals, we must set block quotes apart from other text, usually in a single-spaced block of text double-indented from the left and right, with no quotation marks.

Apparently, word processors have made it more difficult to do the left and right indenting needed for block quotes, and the original listserv poster asked for advice on helping students manage block quotes efficiently.  Having noticed the way our Typepad blogging system makes simple indenting more difficult now, and having banned my students from using most block or other long quotes for years, I was intrigued by this thread. 

Some professors on the thread suggested using quotation marks, even in a block quote, to deal with indenting difficulties.  Other professors offered great tips on various word processing program shortcuts and macros to help students properly indent their long quotes.  However, some contributors asked if teaching the format was worth the investment of class time.  The original poster later gave us all a summary of the info gained from the post, and explained that the majority of commenters suggested taking some class time to teach students a tech shortcut. 

To my surprise, I did not see any comments suggesting students simply break apart the quoted material into shorter, more digestible portions for the reader.  Thus, I acknowledge that I might be an outlier here.  Plus, a block quote is much easier to insert into a document–with mere cutting and pasting–than carefully crafted sentences with smaller pieces of the quoted material.  Nonetheless, I ask you to consider clarity and word limits (hopefully in that order), and ban most block quotes from your writing.  

First, think about how often you have actually read the material in a block quote.  Be honest.  If you are like many readers, you tend to skim tightly blocked text, like long brief point headings and block quotes.  See https://proofed.com/writing-tips/5-top-tips-on-how-to-write-for-skim-readers/. Even style manuals allowing the use of block quotes give many tips on how to make sure your reader still gets your point, despite the block quote.  For example, Bryan Garner’s The Redbook Rule 8.10 suggests that we always introduce a block quote with our own assertions, and let the block material simply support our claims.  Just removing the block entirely will increase your chance of the reader truly seeing your ideas.   

Next, think about the lack of clarity from fifty or more words from one source at one time.  Is the material you need from the quote really just on one point?  If so, you likely do not need fifty words or more from the source, added to your own introduction and analysis.  Consider placing the key parts of the quote, likely five to ten words, in your own sentence.  Additionally, if your rationale for using the long block is to cover several points at once, you might be asking too much of your reader.  Your reader will better understand two or three shorter sentences, each with one main point and a relevant short part of the former block quote. 

Finally, look for extra words in the block quote that you don’t need for your point.  Long block quotes are just that; these blocks are long pieces of text that often devour your word count without adding meaningful content.  My students spend a huge amount of time railing against word limits.  Nonetheless, we know word limits are part of any appellate practice.  Thus, I suggest removing long quotes and keeping only what you need.  Sure, you could keep the quote and add ellipses, but too many ellipses are distracting.  See also Jayne T. Woods, The Unnecessary Parenthetical (“Parenthetical”) (April 9, 2024) (explaining research on the way unneeded parentheticals mid-sentence distract readers).  Rather than obscuring your point in a closely-typed long quote with jarring ellipses, use your own words to present the ideas, working in key short quoted phrases.  

Of course, you might have an instance where the clearest and shortest way to convey your point truly is a block quote.  For this reason, I ban most, not all, block quotes.  I urge you to do the same. 

April 20, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | 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)

Sunday, January 14, 2024

Don’t Overlook Credibility as a Key Factor in Your Reply Brief

Reply briefs provide an advocate with a welcome opportunity to recapture the momentum established in the opening brief. A good opening brief makes a powerful case for your position that, standing alone, ought to spell success. Your opponent’s response brief follows by seeking to arrest the gravitational pull of your opening arguments and lead the appellate panel in a different direction. The reply, the advocates’ last word before oral argument, should attempt to regain your advantage by refuting your opponent’s counterarguments and new points, as well as providing the court with a sense that you bring greater credibility to the applicable caselaw. Credibility can make the difference. Judges will discount an otherwise compelling argument when the advocate has made statements elsewhere that are false or unsupported by cited authority, causing a jurist to doubt the presentation.

A reply brief can employ tools that may help win the gold star of credibility. One way to win the credibility battle is to highlight your opponent’s concessions, which may imply that your arguments are correct at least as far as they go. Those concessions can come in the form of factual agreements even when your opponent argues against the significance of those facts, opening the door for you to emphasize their significance in reply. Concessions can also consist of statements that agree with your identification of relevant precedent, allowing you to explain the case and its meaning for your dispute even more pointedly. 

Another form of concession occurs implicitly when the response brief omits any response to a material point you have made. That omission occurs with more frequency than you might imagine. Caselaw in nearly every jurisdiction treats that omission as either waiving the argument or, with much the same effect, a concession. A reply brief should call attention to the lack of response, which also serves to remind the panel of the key nature of the point overlooked by your opponent. Your opponent’s silence, then, becomes a powerful point in your favor.

Another tool in the credibility battle comes from showing the care you took in mustering caselaw without overstating the holdings. Your precision, in comparison to your opponents’ hyperbolic or rhetorical excesses, will work in your favor as the court reads the briefs. Your opponents’ exaggerated and emotion-laden presentation will hold less weight when contrasted with your more lawyer-like, straightforward presentation of arguments framed in terms of the record and the authority that a court should consult. For example, where your opponent calls an argument “made up” or “ridiculous” or engages in ad hominem attacks, it may behoove you to quote their overwrought response and demonstrate that their characterization or problem questions not you or your argument as much as it expresses their misunderstanding of the undisputed record or the meaning of precedent, allowing you to explain in plain yet powerful words the existing facts or applicable law.

Less overblown, but equally problematic, are distortions of your argument that the other side might attempt to show that it makes little sense. When that occurs, a reply brief should explain how the other side either purposely misrepresented or otherwise misunderstood your argument. Doing so allows you to restate the premise of your argument to assure that the court understands it as intended and that it provides no basis for the criticism your opponent mounted. And, in those instances where opponents misrepresent or misunderstand the argument, you can also demonstrate anew its validity and applicability by showing that their reading is far from what you argued or constitutes a wild and unwarranted extrapolation from it.

A final consideration in establishing your greater credibility: read the response brief from the perspective of a judge unfamiliar with the case or the relevant precedents. From that reading you will likely identify between one to three points that raise understandable doubts about your argument. Those points, then, become the questions that the judge probably will expect answered in the reply – and setting out those questions and compelling answers to them in an introduction, particularly where you can use the other credibility tools mentioned here throughout the brief, will bolster your credibility. Often, credibility serves as the key to success in an appeal.

January 14, 2024 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, Rhetoric, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, August 27, 2023

Political Debates and Oral Advocacy: Differences and Similarities

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

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

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

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

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

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

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

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

August 27, 2023 in Appellate Advocacy, Federal Appeals Courts, Oral Argument, Rhetoric, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, July 6, 2023

Courts are Regulating Generative AI for Court Filings.  What Does This Mean for Legal Writers? 

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

Courts are Regulating Generative AI for Court Filings.  What Does This Mean for Legal Writers? 

There’s been a flurry of court-initiated activity around using generative artificial intelligence (generative AI) to draft court filings. One court has sanctioned the misuse of OpenAI’s large language model, ChatGPT.  Perhaps as a result, at least four more have issued orders regulating the use of generative AI in legal writing.

What’s going on here?  And what does this activity mean for legal writers?

How It All Began:  A Federal Court Sanctions Lawyers’ “Bad Faith” Use of ChatGPT “Fake Cases” in a Court Filing

In March of this year, two lawyers filed a motion in the United States District Court for the Southern District of New York that included citations to multiple court opinions that did not exist.  In Mata v. Avianca, Inc., the plaintiff’s lawyers admitted that one of the lawyers had used ChatGPT, “which fabricated the cited cases.”  The lawyer said that he did not think at the time that ChatGPT could fabricate cases.  According to the court’s finding of fact, the lawyers persisted in representing the cases as real even after they became aware that they were fake.

In its order sanctioning the attorneys, the court noted that although “there is nothing inherently improper about using a reliable artificial intelligence tool for assistance,” lawyers must “ensure the accuracy of their filings.”   As such, the Court sanctioned the lawyers for citing the fake cases under Federal Rule of Civil Procedure 11(b)(2), which required lawyers to certify that, after a reasonable inquiry, the lawyers believed that the “legal contentions [in the court filing were] warranted by existing law.”   The court suggested that, perhaps, if the lawyers had “come clean” about the fake cases in a timely manner, the lawyers might not have violated Rule 11 simply by mistakenly citing the fake cases.  But because the lawyers had engaged in acts of “conscious avoidance and false and misleading statements to the Court” and had continued to stand by the fake cases even after judicial questioning, they had engaged in bad faith, which merited sanctions. 

How Courts are Regulating Generative AI—And What They Appear to Be Concerned About

Between the time news reports began circulating and the Mata court’s order issuing sanctions, other courts acted to prospectively regulate generative AI use in cases before them.  Their rationales for regulating generative AI use in court filings vary but are focused on four concerns:

  • ensuring the involvement of human beings in checking generative AI’s accuracy;
  • ensuring that cited legal authority cited exists and is accurately described;
  • protecting sensitive information from inadvertent disclosure to others; and
  • ensuring lawyers do their own writing.

Human Beings Must Check Generative AI’s Output for Accuracy

In the United States District Court for the Northern District of Texas, one judge created a new “Judge Specific Requirement” that requires all attorneys and pro se litigants to certify for all filings in the case that either (1) they will not use generative AI to draft court filings or (2) a “human being” will check any portions generated by AI “for accuracy, using print reporters or traditional legal databases.”

The judge explained that “legal briefing” is not a good use of generative AI because it is “prone to hallucinations [(i.e., inaccurate information)] and bias.” Concerning bias, the judge said that because large language models like ChatGPT have not sworn an oath to “faithfully uphold the law and represent their clients,” they are “unbound by any sense of duty, honor, or justice” that applies to lawyers and act only according to “computer code” and “programming.” 

The judge advised parties that they could, if they desired, move for leave to explain why generative AI “has the requisite accuracy and reliability for legal briefing.”  The judge provided a certification form that requires a guarantee that

[n]o portion of any filing in this case will be drafted by generative artificial intelligence or that any language drafted by generative AI --including quotations, citations, paraphrased assertions, and legal analysis -- will be checked for accuracy, using print reporters or traditional legal databases, by a human being before it is submitted to the court. I understand that any attorney who signs any filing in this case we'll be held responsible for the contents thereof according to the applicable rules of attorney discipline, regardless of whether generative artificial intelligence drafted any portion of that filing.

A magistrate judge In the United States District Court for the Northern District of Illinois articulated a similar rationale when he added a certification requirement to his Standing Order for Civil Cases.   The judge required that any party that uses any “generative AI tool” for “preparing or drafting” court filings must “disclose in the filing that AI was used and the specific AI tool that was used to conduct legal research and/or to draft the document.”  The judge said that parties should “not assume” that relying on generative AI would “constitute reasonable inquiry” under Rule 11 of the Federal Rules of Civil Procedure.  The Standing Order focused on the unreliability and inaccuracy of legal research as the reason for the certification requirement. It said that the judge would “presume” that the certification means that “human beings . . . have read and analyzed all cited authority to ensure that such authority actually exist.”

Court Filings Must Have Accurate Citations to Law and the Record

Another judge focused specifically on the accuracy of citations to the law in his order requiring that the use of “artificial intelligence” for court filings be disclosed.  In a standing order for a judge sitting in the United States District Court for the Eastern District of Pennsylvania, the judge required that all attorneys and pro se parties make a “clear and plain factual statement” that disclosed the use of “AI . . . in any way in the preparation” of court filings and certify “every citation to the law or the record . . . has been verified as accurate.”

Parties Must Protect Confidential and Business Proprietary Information from Disclosure to Generative AI

In the United States Court of International Trade, one judge issued an “order on artificial intelligence” to protect “confidential or business proprietary information” in court briefs.

In the Court of International Trade, specific rules protect “sensitive non-public information owned by any party before it” from disclosure.  As such, the court requires filings to identify which information contains sensitive information.  It also requires lawyers to file “non-confidential” versions of briefs that remove this information.  Lawyers practicing before the Court of International Trade can receive sensitive information if they are certified by the court to do so.

In this context, the judge explained his concern that “generative artificial intelligence programs . . . create novel risks to the security of confidential information.”  Because lawyers might prompt these programs with confidential or business proprietary information to get generative AI to provide useful outputs, a risk arises that generative AI will “learn” from that prompt, thereby enabling the “corporate owner of the [generative AI] program [to retain] access to the confidential information.”  The order says this implicates “the Court’s ability to protect confidential and business proprietary information from access by unauthorized parties.”

Accordingly, the court ordered all submissions drafted with the assistance of generative AI by using “natural language prompts” be accompanied by (1) a disclosure identifying which generative AI “program” was used and which portions of the document had been drafted with generative AI assistance, and (2) a certification stating that the use did not result in any sensitive information being disclosed to “any unauthorized party.”  The order also specifically allowed any party to seek relief based on the information in this notice.

Lawyers Must Do “Their Own Writing”

In the case of Belenzon v. Paws Up Ranch, LLC, filed in the United States District Court for the District of Montana, a judge ordered that an out-of-state attorney admitted pro hac vice must “do her own work.”  The court said that this included doing “his or her own writing.” As such, the court prohibited the pro hac lawyer from using “artificial intelligence automated drafting programs, such as Chat GPT.”  The court did not explain its reasoning in the order.

What Should Legal Writers Do in This New Regulatory Environment?

These varying approaches to generative AI (as well as the availability of it) put pressure on legal writers to anticipate what they should do in this new environment.  Here are some suggestions for taking action.

Check local court rules, standing orders, procedural orders issued in your case, or the published preferences of judges to see if a judge has rules on generative AI use. This is a quickly developing area, and you can expect that more judges—and perhaps even entire courts in their local rules—will begin to consider whether and how they regulate generative AI.

Read the new regulations carefully. How judges will regulate AI in their courtroom will likely vary, so read carefully and avoid assumptions.  For example, in the new regulations, the courts vary how they refer to the technology they are concerned about, using both “generative AI” and “artificial intelligence” as identifiers. But these terms do not necessarily mean the same thing. “Artificial intelligence” generally means a broader category of tools than “generative AI.”  For example, Word’s Editor is powered by artificial intelligence.  Lexis already uses “extractive artificial intelligence” in some of its research products. Brief Catch represents that it uses artificial intelligence in its products. These are all AI tools that do not fall within the category of generative AI. 

A lawyer attempting to comply with AI regulation needs to know the scope of what the court wants to regulate.  That is, does a court requiring a certification about “artificial intelligence” mean to include tools like those mentioned above?  If you are not sure what the judge means, it might be wise to ask.  (and judges should be as clear as possible about what artificial intelligence tools they are concerned about so as not to unintentionally regulate writing tools too broadly.  For example, Word’s Editor does not seem to raise the concerns the judges have identified yet fits within the category of “artificial intelligence.”)

In addition, courts vary in what they want you to do about generative AI. One court—in one specific circumstance—has prohibited its use.  But the rest—so far—ask for various attestations about what and how it has been used.  As time progresses, you may appear before courts regulating generative AI differently.  Get clear on the requirements and add the requirements to your court-specific writing checklist.

If you use generative AI to help you write, treat it like any other writing tool. Generative AI does not replace you; you are responsible for the quality of your writing.  The courts are right: no currently available generative AI tool replaces a lawyer in producing written documents.   But there is potential for generative AI to help legal writers write more clearly, precisely, correctly, and persuasively.  This could mean better and more cost-effective results for clients—and more efficient and effective practice before the courts.  In other words, courts could benefit from lawyers competently and carefully using generative AI as a legal writing tool.

Plus, enterprise versions of generative AI tools are rapidly developing for use in the legal domain, which may make using generative AI for legal writing less risky.   Some products already exist; others are on the way. These tools are meant for lawyers, and some lawyers are already using them.  Unlike the publicly available all-purpose large language models like ChatGPT and Bard, these fine-tuned and further trained models will likely better protect confidential client information; produce more accurate, reliable, and verifiable for legal research; and be more competent at generating effective legal writing.  In other words, future generative AI writing tools will do more to address the courts' concerns about generative AI.  Regardless of whether you are using general purpose or enterprise generative AI for your legal writing, one thing won’t change: you are ultimately responsible for the written work you produce.  You are the human being the courts care about. You cannot outsource your judgment and competence to generative AI.  It does not evaluate information, legally reason, or do legal analysis (even though it might appear to). It does not have a professional identity committed to the rule of law, just results, and fair play.  What it does is this:  It uses mathematical computations to predict the most appropriate words to provide in response to a prompt. Thus, to use generative AI ethically and responsibly, you must

Understand how generative AI works. Generally speaking, you have an ethical duty to be competent in using technological tools as part of your practice.  If you don’t have a basic understanding of natural language processing, machine learning, and large language models, you should get that understanding before you use generative AI.  There’s a strong argument that generative AI is here to stay as part of legal practice.  Learn all you can.

Be careful about disclosing confidential information in prompting generative AI; know how your prompts are used and retained. How generative AI treats the information you give it is in flux.  For example, while ChatGPT did not have a setting that kept prompts from training the large language model when it was released to the public, it does now.  And it also now has a setting that will allow users to limit the storage of prompts to 30 days.  While these changes are great examples of the rapid evolution of generative AI in response to user feedback, those changes don’t solve all of the lawyer’s problems concerning sharing confidential client information with generative AI. 

In my opinion, the question of what information can be shared with generative AI is a complex question to which only simple answers have been offered so far.  Part of the complexity comes from variations in state ethics rules.  Depending on your state ethics rules, you may have more or less leeway to ethically include client information in prompts.  In addition, if disclosing client information in a prompt furthers the client’s interests, perhaps there is room for a lawyer to argue that a disclosure to generative AI is warranted.  Moreover, it might be arguable that prompts for generative AI may, if carefully crafted, fall into the “hypothetical” rule that appears in many states’ confidentiality rules.  But, at this point, little certainty exists about how state bars will apply confidentiality rules when client information is shared in a generative AI prompt.   I hope that bar regulators provide answers to these questions about confidentiality—perhaps in ethics opinions. 

Know your legal obligations regarding data privacy and cybersecurity. The ethics rules about confidentiality don’t fully address the Court of International Trade Judge’s concern about disclosing proprietary information.  That information might be subject to other disclosure laws.  Thus, you should also consider whether you have legal duties that extend to the protection and privacy of your clients’ and others’ information in the generative AI context.  In addition, if you work for a law firm, you may have policies that address sharing and using information in the firm’s possession.  You should know what those policies are. 

And finally, check every AI-generated citation, fact, statement of law, and analytical statement. This is the dominant theme of the courts’ orders thus far: lawyers are failing to check the accuracy of generative AI’s output.  But if you are a lawyer, you already know that ensuring the accuracy of the work you produce is a fundamental ethical obligation.  So, no matter how confident you are in the output of a generative AI tool, you must always check the output that is purported to be factual or authoritative.  ChatGPT, for example, warns you about this.  At the bottom of its context window webpage, it states, “ChatGPT may produce inaccurate information about people, places, or facts.”   So, as you have always done with your legal writing, check the accuracy of every citation.  Read every legal authority to ensure it stands for the legal propositions you claim. Update and validate your authorities.  Double-check every fact.  Ensure that every step in the argument is logical, reasonable, ethical, and persuasive.  If you use generative AI to revise or edit your work, check every change to ensure it is correct.

What are your thoughts about generative AI and legal writing?

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the founding director of the Institute for the Advancement of Legal Communication and currently serves as Stetson’s Faculty Director of Online Legal Education Strategies.  Among other things she’s up to right now, she’s currently studying generative AI and its impact on legal communication. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at [email protected].

July 6, 2023 in Legal Ethics, Legal Profession, Legal Writing, Rhetoric, Web/Tech | Permalink | Comments (0)

Tuesday, June 20, 2023

Originalism's Frailties: A Reply to Professor Lamparello

Last week, Professor Lamparello argued on this blog that "originalism, although not perfect, is the best method of constitutional interpretation."  I'm skeptical. 

Admittedly, in the vacuum of political theory, originalism has a certain elegance and persuasive force.  The Framers created a system of separated powers, originalists reason.  Congress makes law; the judiciary merely interprets it.  Any interpretive theory that permits unelected judges to change the meaning of a law is dangerous and anti-democratic.  Thus, to curtail judicial legislation, originalists say that judges should endeavor to discover and preserve the meaning the Constitution's words bore at the time of ratification.  After all, the law is the law, until lawfully changed under Article V. 

I happily concede these points.  (What serious constitutional lawyer would dare disagree with these basic principles of political science?)  But they're not the whole story.

In this essay, I hope to show why a rigid, singular focus on original public meaning is a shortsighted way of interpreting many of the Constitution's provisions.  In Part I, I discuss serious reasons to doubt the idea that the Framers actually believed in originalism as an interpretive theory.  In Part II, I dissect Professor Lamparello's "ideal approach" to constitutional interpretation, highlighting its practical shortcomings and its lack of textual or historical support.  And in Part III, I interrogate Professor Lamparello’s claim that originalism most effectively constrains judges. 

I.    Originalists bear the burden of proving that originalism was, in fact, the original intent of the Framers.  But on that score, there is serious reason for doubt.

 Originalism's focus on the Framers' intent raises a threshold question: did the Framers actually believe in originalism?  Whether viewed through the lens of "New Originalism" (which eschews extratextual sources, focusing only on the original public meaning of the document's text) or "Traditional Originalism" (which focuses on the drafters' subjective intent), there are serious reasons to doubt that the Framers would have actually endorsed the theory.

    A.    The Constitution's text, structure, and purpose all cast doubt on the idea that the Framers would have preferred originalist judges.

In interpreting the Constitution, we must start with its text.[1]  To be sure, the text is frequently clear and free from ambiguity--nobody could seriously argue, for example, that Article I allows a state to elect three senators[2]--and when the text is clear, the inquiry ceases.  But the text also contains many provisions with broad, normative language.  Take, for example, the Constitution's guarantee of "equal protection of the laws,"[3] its prohibition of "cruel and unusual punishments,"[4] or its clause forbidding "unreasonable searches and seizures."[5]  It's no coincidence that many of these nebulous, normative words are found within the Constitution's substantive guarantees. 

Why would the Framers purposefully choose such ambiguous, value-based language?  First, it was politically savvy, since it provided a way to quell the local concerns that presumably would have arisen during the states' ratification debates.  But more importantly, the Framers wanted their document to have staying power.  This is expressly confirmed by the Constitution's Preamble--which, originalists should agree, is a proper source of clarification in the face of textual ambiguity[6]--where it states that one of the Constitution's core purposes is "to secure the Blessings of Liberty to ourselves and our Posterity."[7] 

Let's pause here to nip a possible misapprehension in the bud.  Readers may presume I'm arguing for a Constitution whose fundamental meaning changes over time.  Not so.  The meaning of the Constitution's words doesn't change; I do not argue, for example, that "equal protection" should be redefined to sanction unequal insecurity.  But, as mentioned, the Constitution frequently uses ambiguous, normative language.  While the meaning of the words shouldn't change, our societal conception of what fits within those words--i.e., what those words tell judges they should be looking for--can grow.[8]  That's a key difference. 

Consider, for example, the Fourteenth Amendment's Equal Protection Clause.  Few historians would argue that the Equal Protection Clause was intended to apply to women; conventional wisdom holds that the Reconstruction Amendments were principally aimed at combating racial prejudice against Black citizens.[9]  Indeed, in 1868, no state had an operative women's suffrage law,[10] and coverture still held a grip on American gender relations.[11]  And yet, the Amendment's words are plain: no State may "deny to any person within its jurisdiction the equal protection of the laws."  While women might not have been considered "persons" deserving of "equal protection" in 1868, our attitudes and prejudices on that front have changed.  For that reason, the Supreme Court correctly held in Reed v. Reed[12] that the Equal Protection Clause applies to women.  Critically, the meaning of the Equal Protection Clause didn't change; the Court did not hold, for example, that the Clause no longer applied to Black citizens.  Our understanding of what the Equal Protection Clause tells us to look for, however, evolved. 

Would an originalist, focused solely on the ratifying generation's understanding of the Fourteenth Amendment's text, reach the Reed Court's conclusion?  I have my doubts.

Eighth Amendment jurisprudence provides a contrary example—one where the Court has wrongly changed the standard.  The Eighth Amendment forbids "cruel and unusual punishments."[13]  But one cannot determine what is "cruel" without engaging in a normative, moral analysis.[14]  For this reason, the U.S. Supreme Court has correctly concluded that a punishment is unconstitutionally cruel if it is considered cruel in light of the "evolving standards of decency that mark the progress of a maturing society."[15]  But, critically, the Court has also held—wrongly, I contend—that the Eighth Amendment does not draw any meaning from “the standards that prevailed . . . when the Bill of Rights was adopted[.]”[16] 

The more proper reading of the Cruel and Unusual Punishments Clause would hold that it prohibits both (1) punishments that would have been considered cruel and unusual in the founding era and (2) punishments that are cruel and unusual under our maturing society’s evolving standards of decency.  Had the Court not discarded history, this "evolving standards of decency" test wouldn’t have changed the meaning of the phrase "cruel and unusual" at all; it would have given full effect to the phrase by recognizing that it’s both descriptive and normative. 

Undeniably, originalists make many good points.  But too often, by refusing to look past the "original public meaning" of a constitutional provision, originalists unduly constrict (and therefore change) the Constitution's normative language.  In doing so, originalists commit the same sin they swear to disavow.

    B.    The historical record, too, casts doubt on the idea that the Framers would have approved of originalism.  

Originalists insist that New Originalism was actually the authoritative American method of legal interpretation until the mid-twentieth century, when Chief Justice Earl Warren took the bench.[17]  But here again, history renders that claim dubious. 

Take, for example, William Blackstone, who most scholars consider the authoritative expositor of the common law.  Justice Scalia has famously called Blackstone a "thoroughgoing originalist."[18]  Yet, in his Commentaries on the Law of England, Blackstone said that "the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable.  And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law."[19]  Blackstone also said that "the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it."[20]  That's hardly the stuff of modern-day originalism.  

Consider, also, Chief Justice Marshall.  In Cohens v. Virginia,[21] Marshall asked rhetorically whether "the spirit of the constitution" would justify Virginia's exempting itself from the federal constitution.[22]  And in McCulloch v. Maryland,[23] Marshall said that "all means which are . . . not prohibited, but consistent with the letter and spirit of the constitution, are constitutional."[24]  Admittedly, Marshall also argued--as I do--that although "the spirit of an instrument, especially a constitution, is to be respected not less than its letter . . . the spirit is to be collected chiefly from its words."[25]  But the fact remains: Marshall was far from the rigid originalist many claim. 

Thomas Jefferson provides another example.  Concededly, Jefferson was in Paris during the summer of 1787, so his views on the Constitution cannot be considered controlling.  But, as a leading figure of the founding generation, and James Madison's friend and mentor, his insight into the Constitution is undeniably relevant.  Jefferson wrote this to Samuel Kercheval in 1816:

Some men look at Constitutions with sanctimonious reverence, & deem them, like the ark of the covenant, too sacred to be touched. they ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well: I belonged to it, and labored with it. it deserved well of it’s country. it was very like the present, but without the experience of the present: and 40. years of experience in government is worth a century of book-reading: and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent & untried changes in laws and constitutions . . . but I know also that laws and institutions must go hand in hand with the progress of the human mind . . . we might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.[26]

All this is not to say that contrary evidence tending to support originalism can't be found.  It certainly can.  But that's precisely the point: the historical record from the Founding generation is hardly as one-sided as originalists claim.

II.    Professor Lamparello's "ideal" conception of originalism requires revising the constitutional text he claims to venerate.

Most of Professor Lamparello's essay presents garden-variety originalist arguments.  But one downright surprising argument comes near the end, where he says that whenever a law is challenged under a constitutional provision reasonably susceptible of two or more interpretations--for example, the "cruel and unusual punishments" clause--"the ideal approach would be for the Court to defer to the coordinate branches" and uphold the law's constitutionality.

That argument reflects a shockingly limited perception of the proper role of the judiciary--one that's entirely atextual.  The drafters easily could have written, for example, that "no act of Congress may be struck down as violative of the provisions of this Constitution, unless the act's unconstitutionality be clear and free from doubt."  But, as Hamilton pointed out in The Federalist No. 78, the drafters said no such thing:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.[27]

For someone so concerned about judicial legislation, it is certainly odd for Professor Lamparello to invent constitutional rules out of thin air.  And for someone so focused on the original public meaning of the Constitution, it is equally odd to advocate for an interpretive theory that faces such directly countervailing historical evidence. 

Professor Lamparello's theory is also impractical and ahistorical.  James Madison, the Father of the Constitution, pitched the Bill of Rights as a document that would make judges "guardians" of individual rights, just like Hamilton did in the passage excerpted above.[28]  But if judges could only strike down a law when no reasonable person could defend the law's constitutionality, then how could the judiciary effectively guard citizens' rights in the ordinary case?  After all, in what case can't one think of reasonable, good-faith arguments on both sides of a constitutional issue?  If the Framers actually intended the judiciary to defer to the political branches whenever presented with two plausible, competing arguments, then why include these constitutional prescriptions in the first place?  Wouldn't it be easier to simply say nothing and let the states legislate as they see fit? 

III.    Originalism, while theoretically attractive, does a poor job of constraining judges.

Originalism hails itself as the best way to constrain judges.  Critics have long questioned that claim, too. 

To see why, consider District of Columbia v. Heller.[29]  In Heller, both the majority and dissenting opinions cited historical evidence supporting their constitutional interpretation of the Second Amendment.  Fourth Circuit Judge J. Harvie Wilkinson III has argued that, given the murky historical record in Heller, the Court should have stayed its hand and declined to strike down the District of Columbia's handgun prohibition.[30]  And as Judge Posner has noted, Judge Wilkinson's argument finds support from an unlikely source: Justice Scalia's treatise on legal interpretation.[31]  In the Foreword of Justice Scalia's treatise, Judge Easterbrook says this:

Words don't have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text's adoption understood those words.  The older the text, the more distant that interpretive community from our own.  At some point the difference becomes so great that the meaning is no longer recoverable reliably. . . .  [When that happens, the courts should] declare that meaning has been lost, so that the living political community must choose.[32]

This is a version of the judicial-restraint principle for which Professor Lamparello, Justice Scalia, and other originalists advocate.  In Heller, Justice Scalia's reading of the Second Amendment's history was likely erroneous.[33]  But even if the history is mixed, that should have led Justice Scalia to conclude that the relevant meaning had been "lost to the passage of time" and to entrust the answer to the living political community.[34]  The "living political community" in Heller was the District of Columbia legislature.  But, far from exercising the democratic "deference" Professor Lamparello advocates, the Court struck down the District of Columbia's gun-ownership prohibition. 

And historical questions plagued more than just the Heller majority's holding.  In a dictum, the Court explained the contours of the right it recognized:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[35]

As Professor Reva Siegel has persuasively argued, there is little historical evidence supporting this passage, and it actually contradicts the Second Amendment's textually enunciated purposes.[36]  "In these passages," Professor Siegel concludes, "Justice Scalia seems to apply something other than an original 'public understanding' analysis."[37] 

United States v. Eichman[38] provides another example of how originalism fails to constrain judges.  In Eichman, Justice Scalia voted to strike down a federal statute outlawing the burning of the American flag.[39]  To Scalia's credit, it was a vote against his political predilections.  But it was certainly an odd ruling for an originalist.  The governing constitutional provision--"Congress shall make no law . . . abridging the freedom of speech"[40]--says nothing about non-verbal forms of protest.  And the eighteenth-century conception of the speech right was much narrower than our modern understanding.  According to Blackstone, at common law, freedom of speech only forbade prior restraints on speech; it did not prohibit after-the-fact punishment of speech determined to be blasphemous, obscene, or seditious.[41]  Thus, a First Amendment that bans prohibitions on flag burning is decidedly unoriginalist.

Apparently anticipating the objection raised in this Part, Professor Lamparello preemptively defends his position by arguing that "in some circumstances, judges do rely on originalism to reach outcomes that coincide with their policy preferences.  However, that reflects bad judging, not problems with originalism per se."  Is the truth so conveniently simple?  Can we really shrug off as "bad judging" the remarkable methodological elasticity of originalism's leading champion?  Or is it possible that the problem lies deeper below the surface?

* * *

To be sure, no theory of constitutional interpretation is perfect.  But the manifold problems with originalism--too many to detail exhaustively in this short essay—lead me to question whether, as Professor Lamparello insists, originalism is the best we can do. 


[1] See, e.g., District of Columbia v. Heller, 554 U.S. 570, 576 (2008).

[2] See U.S. Const. art. I, § 3, cl. 1.

[3] U.S. Const. amend. XIV, § 1.

[4] U.S. Const. amend. VIII.

[5] U.S. Const. amend. IV.

[6] See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 217 (1st ed. 2012) (hereinafter “Scalia & Garner, Reading Law) (approving of interpretive canon providing that “[a] preamble . . . is a permissible indicator of meaning”).

[7] U.S. Const. pmbl. (emphasis added).

[8] See also Furman v. Ga., 408 U.S. 238, 382 (1972) (reasoning that “[t]he standard itself remains the same, but its applicability must change as the basic mores of society change”). 

[9] See, e.g., Slaughter-House Cases, 83 U.S. 36, 81 (1873).

[10] Women’s Suffrage in the U.S. by State, https://tag.rutgers.edu/wp-content/uploads/2014/05/suffrage-by-state.pdf (last visited June 20, 2023). 

[11] Encyclopedia Britannica, Coverture, https://www.britannica.com/topic/coverture (noting that “[c]overture was disassembled in the United States through legislation at the state level beginning in Mississippi in 1839 and continuing into the 1880s”). 

[12] 404 U.S. 71 (1971).

[13] U.S. Const. amend. VIII.

[14] Kennedy v. La., 554 U.S. 407, 419 (2008) (quoting Furman, 408 U.S. at 382). 

[15] Trop v. Dulles, 356 U.S. 86, 101 (1958).

[16] Atkins v. Va., 536 U.S. 304, 311 (2002).

[17] Richard A. Posner, The Incoherence of Antonin Scalia, New Republic (Aug. 24, 2012), https://newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism (hereinafter “Posner, Incoherence”). 

[18] Id.

[19] Id.

[20] Id.

[21] 19 U.S. 264 (1821).

[22] Id. at 383.

[23] 17 U.S. 316 (1819). 

[24] Id. at 421 (emphasis added).

[25] Sturges v. Crowninshield, 17 U.S. 122, 202 (1819). 

[26] Jefferson Quotes & Family Letters, https://tjrs.monticello.org/letter/1384 (last visited June 20, 2023). 

[27] The Federalist No. 78 (Alexander Hamilton).

[28] The Bill of Rights: Its History & Significance, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/billofrightsintro.html (last visited June 20, 2023). 

[29] 554 U.S. 570 (2008). 

[30] Posner, Incoherence.

[31] Id.

[32] Scalia & Garner, Reading Law at xxv.

[33] Posner, Incoherence (noting that “most professional historians reject the historical analysis in Scalia’s opinion”). 

[34] Scalia & Garner, Reading Law at xxv.

[35] Heller, 554 U.S. at 626-27.

[36] See generally Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008).

[37] Id. at 200. 

[38] 496 U.S. 310 (1990). 

[39] Id. at 312.

[40] U.S. Const. amend. I.

[41] Posner, Incoherence.

June 20, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Religion, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Court opinions are more than soundbites


A_travers_les_ateliers_1954.12.17

Like many of you, I read the Supreme Court’s recent decision in National Pork Producers Council v. Ross, 143 S. Ct. 1142 (2023) very carefully. Not just because the dormant commerce clause is cool, but because the various opinions offer an interesting insight into how the justices are aligning and thinking on different issues.

One comment in the majority opinion stood out to me as being particularly important. The Petitioners (and some courts) had read the language of prior Supreme Court cases very closely, and concluded that they had created an “almost per se rule” that a state law, neutral on its face, violates the dormant commerce clause “if the ‘practical effect’ of the law is to control” out-of-state prices. Ross, 143 S.Ct. at 1155 (quoting Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 583 (1986)).

The language of those cases was properly quoted by the Petitioners. However, Justice Gorsuch reminded us that “[T]he language of an opinion is not always to be parsed as though we were dealing with language of a statute.” Id. (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979)). Instead, he continued, our courts decide “cases and controversies,” and their opinions must be read with a careful eye towards context. Id.

This distinction was aptly summarized by the Ninth Circuit a few years ago: “Stare decisis is the policy of the court to stand by precedent . . . . [T]he word ‘decisis’ . . . means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not ‘to stand by or keep to what was said.’” In re Osborne, 76 F.3d 306, 309 (9th Cir. 1996). Using this principle, the court was able to determine an issue when there were prior cases with directly conflicting language, by looking at what those cases did.

So, we are supposed to read opinions like opinions – they apply the law to specific cases, and all we can conclude is that in that particular case, the law has a given result. The rest is Socratic – we move the goalpost a bit, analyze the legal principles under changed facts, and argue that these facts should have a result favorable to our client under the stated principles, while our opponent tests that reasoning, and the court tries to find the best answer.

Why, then, do we focus so much on quotes and soundbites? Well, for one thing, it is easier. But that is too simple of an answer.

There are actually several reasons why we are susceptible to soundbites. See Judith M. Stinson, Why Dicta Becomes Holding and Why it Matters, 76 Brook. L. Rev. 219 (2010). As Professor Stinson suggests, electronic research means we focus in on specific words and phrases in our research, which then supports their usage in our reasoning. The rise of the use of law clerks may also impact the court’s focus on words. Changes to citation rules encourage soundbites and quotes. And our culture is increasingly a “meme” based culture, relying on quick soundbites to convey ideas.

Whatever got us here, Ross is a good reminder that finding that right quote doesn’t mean you’ve found the right law. We have to parse through, carefully, what the courts have done in a particular situation, not just the words they have used.

This isn’t a job AI (currently) can do. AI will find (or generate) the soundbite, but it can easily miss the holding. It takes a lawyer to reason through the facts and suggest how they should apply in a given case or controversy. If you just rely on soundbites, you might miss the decisis for the dicta.

(image credit: Honoré Daumier, A travers les ateliers, 1862).

June 20, 2023 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Tuesday, May 2, 2023

Legal Communication and Rhetoric: JALWD Turns 20

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

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

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

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

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

 

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

May 2, 2023 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, Legal Writing, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Tuesday, April 18, 2023

Demeanor in the virtual courtroom

AI art - lawyers misbehaving at counsel table

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

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

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

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

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

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

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

April 18, 2023 in Appellate Advocacy, Legal Ethics, Legal Profession, Moot Court, Oral Argument, Rhetoric, United States Supreme Court, Web/Tech | Permalink | Comments (1)

Thursday, April 6, 2023

Prompt Engineering for ChatGPT Can Improve Your Legal Writing—Even if You Never Use ChatGPT

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

Prompt Engineering for ChatGPT Can Improve Your Legal Writing—Even if You Never Use ChatGPT

Generative artificial intelligence (AI), like ChatGPT and Bing’s AI-powered chat, is motivating a fundamental reconsideration of the ethics and practicalities of how humans can produce good writing.  In the legal writing context, there’s plenty of discussion around whether and how legal writers should use generative AI as part of writing practice.  While I’m not going to delve into the questions about whether and how to best use generative AI like ChatGPT in legal writing (I’ve already done a little bit of that here), I want to look at a skill necessary for working effectively with generative AI that I think can help you be a better writer in general:  prompt engineering or prompt design.   Understanding prompt engineering and applying it to your own writing can help you write better.

What is Prompt Engineering?

Prompt engineering is the process of using specific words and phrases along with choices about the structure and organization of those words and phrases to write instructions that improve generative AI’s ability to provide a response that is useful to a human prompter.  The emerging literature around generative AI suggests that prompt engineering will be a skill that writers will need to competently use large language models like ChatGPT. 

Prompting for ChatGPT is done in natural language, in everyday conversational English (for English speakers). This is because ChatGPT is trained to understand and respond to conversation in a conversational manner.  So no specialized programming knowledge is needed to prompt ChatGPT;  instead, a human prompter needs two things:  (1) an understanding the rhetorical situation to which ChatGPT is being asked to respond, and (2) an ability to communicate that rhetorical situation precisely and clearly to ChatGPT in everyday language.

Prompt Engineering and the Rhetorical Situation

Prompt engineering, at bottom, represents a human ability to carefully describe rhetorical situations that call for some kind of communicative response.  In other words, prompts give ChatGPT a way to get to know the rhetorical situation confronting the human prompter, which includes the needs of the audience, the limitations and opportunities presented by the context, and the purpose of the writing in relation to the issues confronted by the writer. Like all other writing, writing generated by ChatGPT is more effective if it is written specifically for the rhetorical situation the human writer envisions; that is, it is written for a specific audience, with a specific purpose, and in an appropriate tone.  The better engineered a prompt, the better chance there is of generating useful text appropriate for the rhetorical situation. 

An Example of the Basic Techniques of Prompt Engineering

Ultimately, prompt engineering is a set of techniques that encourage ChatGPT to generate more useful responses.  There’s quite a bit to know about prompt engineering, but reviewing the basic concept will help you understand how prompt engineering techniques can improve your own writing regardless of whether generative AI is part of the process.  Let’s walk through an example of how we might prompt ChatGPT to generate content about an appellate standard of review.

 “Write a paragraph that sets out the de novo standard of review.”

This is a basic prompt in the form of an instruction, and I used it to get this result from ChatGPT: 

The de novo standard of review is a legal standard applied by courts when reviewing decisions made by lower courts or administrative agencies. Under this standard, the reviewing court gives no deference to the decision made by the lower court or agency, and instead, conducts a completely fresh review of the evidence and legal arguments presented. This means that the reviewing court does not consider the lower court or agency's decision as binding or controlling and has the power to make an entirely new decision based on the evidence and arguments presented to it. The de novo standard of review is typically used in cases where there are no factual findings to be reviewed, or when the issue being reviewed is a question of law.

Not too bad, but through prompt engineering, I might generate a better result.  First, I can give ChatGPT context about the rhetorical situation, specifically describing the audience for whom it is writing: 

“You are writing an appellate brief for the United States Court of Appeals for the 11th Circuit.  Appellate court judges are your audience.”

I can also describe to ChatGPT the specific output I expect: 

“Write a paragraph that sets out the de novo standard for the standard of review section of the appellate brief.”  

So now, my more specific, detailed, and rhetorically aware prompt looks like this:

“You are writing an appellate brief for the United States Court of Appeals for the 11th Circuit.  Appellate court judges are your audience. Write a paragraph that sets out the de novo standard for the standard of review section of the appellate brief.”

In this prompt, I've added more information about the rhetorical situation for ChatGPT to draw upon as it attempts to predict the best response for the prompt.  (Remember, ChatGPT and other generative AI predict what words are appropriate in response to the prompt; they do not think, analyze, or evaluate, they predict using mathematical models for language). 

This was the response to my new prompt:

In this appellate brief, we are appealing a decision made by a lower court to the United States Court of Appeals for the 11th Circuit. As appellate court judges will be our audience, it is important to explain the standard of review that will be applied in this case. Under the de novo standard of review, the appellate court will review the lower court's decision without giving any deference to the lower court's findings or legal conclusions. The appellate court will instead conduct a fresh review of the record and make its own determination as to the appropriate legal outcome. This standard of review is typically applied in cases where the lower court's decision involved purely legal issues or when there were no factual findings made by the lower court. In this case, we argue that the de novo standard of review should be applied to our appeal.

Two notable things happened here. First, expert legal writers will recognize stylistic junk in the response.  Specifically, a clumsy first sentence, an explicit nod to judges as the audience, and a specific statement that it is important to identify the standard of review are all stylistically awkward choices for an appellate brief.  But second, and more favorably, experts will recognize that ChatGPT generated a response that is more rhetorically aware:  it generated a response that is less academic in its tone and is written from the point of view of the appellant. While the voice of the paragraph needs more attention in revision, ChatGPT has improved the rhetorical sensibility of the response.

But I think I can get ChatGPT to do better.

Rather than having ChatGPT start over with a new paragraph, I’m going to give it a chance to revise the existing paragraph.  I will ask ChatGPT to revise what it wrote, and I will give it more detailed information about the rhetorical situation (in other words, I will add more input data for it to work with in generating a response).  I’ll tell ChatGPT that I am dealing with an appeal from summary judgment and that I’d like some case citations:

“Revise this paragraph to focus on the standard of de novo review for summary judgment motions.  Add citations to cases from the United States Court of Appeals for the Eleventh Circuit that support the assertions in the paragraph.”

Here’s the response:

In the United States Court of Appeals for the Eleventh Circuit, the standard of review for summary judgment motions is de novo. This means that the appellate court will review the lower court's decision on summary judgment without any deference to the lower court's findings or legal conclusions. The appellate court will conduct a fresh review of the record to determine whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. As stated in Gil v. Winn-Dixie Stores, Inc., 257 F.3d 1258 (11th Cir. 2001), "we review a grant of summary judgment de novo, applying the same legal standards as the district court and viewing the evidence in the light most favorable to the nonmoving party." Similarly, in Rice-Lamar v. City of Fort Lauderdale, 232 F.3d 836 (11th Cir. 2000), the Eleventh Circuit held that "we review the grant of summary judgment de novo, drawing all inferences in favor of the nonmoving party." Therefore, we ask the appellate court to apply the de novo standard of review in this case to ensure a fair and impartial review of the lower court's decision on summary judgment.

A good appellate writer will recognize that there’s still some stylistic awkwardness in this paragraph that can be eliminated with some revision.  For example, the paragraph can be made more concise by eliminating the quoted material from the case law and instead using the citations provided (assuming they are accurate—accuracy cannot be assumed with ChatGPT) to support the first three sentences of the paragraph. But what is good about the paragraph is that its detail, point-of-view, and tone are more tailored to the rhetorical situation confronting the appellate writer, and the paragraph is responsive to the human prompter’s details. At minimum, there is more richness in the content that the human drafter can use to write  an effective statement of the standard of review.

In sum, three ideas about writing emerge from our prompt engineering example:

  • Good writing depends on the writer’s ability to carefully interrogate and explicitly articulate the features of the rhetorical situation.
  • Being able to identify and articulate the specific writing task to be performed, the context for that task, the details of that context, and the output to be generated can improve the chances of writing to effectively respond to the rhetorical situation.
  • Prompt engineering can improve the process of making targeted, thoughtful, and specific revisions.

Using Prompt Engineering in Your Own Writing (and in Mentoring Others’ Writing)

Even if a legal writer never uses a tool like ChatGPT to generate text, using the techniques of prompt engineering in the writing process can help legal writers write better.

It’s likely true that experts in appellate writing subconsciously generate prompts like those we’ve examined here, and those subconscious prompts guide their writing. But remember that ChatGPT got better at its task when it received explicitly stated, detailed prompts.  What might it look like to do the same thing in your own writing, to use prompt engineering as a conscious step?  And could prompt engineering help expert writers mentor inexperienced ones?

Here’s an example of how prompt engineering might help a more experienced writer mentor a more novice one.

Imagine this case. A school district disciplines a high school student for refusing to participate in a school assembly honoring Veteran’s Day.  The student asserts a political motive for refusing to participate and that the discipline violates her free speech rights.  Both the school district and the student move for summary judgment before the trial court.  The court grants summary judgment for the school district and denies it for the student.  The student’s lawyers, one senior appellate lawyer and one junior one, are working together on the appeal, arguing that, as a matter of law, the trial court decided the cross-motions incorrectly.

The junior lawyer has written the first draft of the brief, but the senior lawyer has found it lacking in persuasiveness, particularly because the junior lawyer has not been effective in supporting her argument with factually analogous cases that have outcomes favorable to the student’s position.

In guiding the junior lawyer’s revisions (whether in conversation or in writing), the senior lawyer could use prompt engineering techniques.  The senior lawyer could give the junior a basic instruction like “Improve the quality of the analogies in the arguments.”  But engineering that prompt could yield better results. First, a better instruction would clarify the task: “Add to the argument analogies to cases that are factually similar and support the outcome we seek.”

Then the prompt would include context that helps the junior lawyer see the rhetorical situation more clearly and from the point of view of the more experienced lawyer.  For example, the senior lawyer could add:

“The judges will find analogies to cases persuasive.  Cases where an appellate court has reversed summary judgment on similar facts are good for analogies. Ideally, you want to draw the court’s attention to cases where a student was silent or absent from a required school activity and asserted a political reason and the court thought the student was entitled to summary judgment.”

Even further, a good prompt from the senior lawyer could include the output expectation:  “Revise your argument paragraphs to add comparisons to at least two cases (if you can find them) that are analogous on their facts and favorable on their outcome.  Be specific about the analogies—use details to show how the cases are similar to our case.”

So, what’s going on here?  We’ve engineered a prompt—from senior lawyer to junior one—that is more likely to yield what the senior lawyer knows will be more effective argument in the appellate brief. It includes detailed instructions, input data about useful analogies, audience information, and clear output instructions.

While this example reflects communicating a prompt between two people, you can be your own audience for a prompt.  Before beginning a project,  you might write a prompt that will guide the drafting. In addition, when you are struggling with a particular part of a document, you might stop and ask, “What is my prompt for writing this?”  “What instructions do I give myself here?  What is the context, the audience, the purpose?  What is the output I’m seeking?”  You might even take a moment and write that prompt down to focus your efforts.  By using the techniques of prompt engineering, you can slow down the process and explicitly analyze the rhetorical situation, which can improve the output.

The Recap

Prompt engineering is a useful technique for working with generative AI because prompt engineering can improve the quality of the responses generated.  But prompt engineering can also be a useful technique for legal writers more generally because prompting forces writers to carefully articulate the demands of the rhetorical situation and define precisely what response to that situation is appropriate.  The prompt engineering method of creating precise writing instructions, contextualizing those instructions with detail about rhetorical situation, and describing the desired output can help a writer generate text, revise existing text, or give good feedback to other writers.  Prompt engineering can help with writing and revision at all levels, from drafting the entire document to the revision of sentences.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Co-Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently working on a writing handbook written specifically for trial lawyers. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at [email protected].

April 6, 2023 in Appellate Practice, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Saturday, March 18, 2023

ChatGPT and Legal Writing

ChatGPT is an artificial intelligence chatbot that can, among other things, compose music, play games, and generate student essays and examination answers. Indeed, ChatGPT has already been studied to assess its efficacy on law school examinations. One study, for example, revealed that ChatGPT passed four law school exams at the University of Minnesota -- earning an average grade of C+ -- and an exam at the University of Pennsylvania’s Wharton School of Business.[1]

The leader of the study examining ChatGPT in the law school performance context stated that “[a]lone, ChatGPT would be a pretty mediocre law student," and emphasized that “the bigger potential for the profession here is that a lawyer could use ChatGPT to produce a rough first draft and just make their practice that much more effective.”[2]

Certainly, in law school and in the legal profession, ChatGPT can have benefits. For example, ChatGPT can enhance efficiency by, for example, producing rough drafts of basic legal documents such as complaints, memorandums, interrogatories, and document requests.  Additionally, ChatGPT can assist individuals who cannot afford legal services in producing competent legal documents.

What ChatGPT cannot do, however, is teach law students how to think, how to write, and how to persuade. That, in a nutshell, is the point – and the problem. Below are two concerns regarding ChatGPT’s effects on law school and the legal profession.

1.    Law students need to learn how to think critically.

Learning how to think critically is among the most important skills needed to be a competent lawyer. And in recent years, many students begin their first year of law school lacking this skill. Thus, during the first year of law school, particularly in doctrinal and legal writing courses, students learn, among other things, how to read cases, understand complex legal concepts, synthesize the law, and apply the law to different fact patterns.

ChatGPT is problematic because, in some contexts, it does the thinking for the students. In so doing, it enables students (to some extent) to avoid the admittedly arduous process of understanding and interpreting complex legal doctrines, and presenting such doctrines (e.g., in a memorandum or a brief) in an understandable, logical, and persuasive manner. Indeed, David Kemp, an adjunct professor at Rutgers Law School, stated that “[i]f you’re asking it to organize several concepts, or are struggling to explain something in a way that’s really understandable, it can help.”[3]

That, again, is the point – and the problem.

Students should not be relying on artificial intelligence to organize complex legal concepts or explain them in a way that readers can understand. They should, through hard work and perseverance, develop critical thinking skills so that they can do it themselves. Otherwise, we are training students to rely not on their minds or their legal training, but on a technology that, at best, produces mediocre results.

Perhaps some would describe this as an “old school” approach to legal education. And they would be right. The quality of law students at many law schools has steadily declined in recent years, and ChatGPT threatens to worsen this problem by doing for law students what they should, after three years of legal training, be able to do for themselves.

2.    Law students need to learn how to write competently and persuasively.

It is no secret that judges and lawyers often criticize law graduates for their poor writing skills.[4] The reasons for this include, but are not limited to, insufficient preparation during students' undergraduate coursework, and insufficient dedication to required legal writing courses in law school.

This fact, however, only underscores the need to train students to think – and write – like lawyers. Students need to learn, for example, how to research the law, how to craft a compelling narrative, how to synthesize legal authority, how to reconcile unfavorable facts and law, and how to draft an organized and well-structured legal argument.

To do so, students need to embrace the writing process, which involves writing, rewriting, and editing. It requires critical thinking. Hard work. Perseverance. And the ability to write effectively and persuasively. ChatGPT is not going to teach students how to do this because, at least to some extent, it will do it for them. That makes the problem worse, not better.

To be sure, ChatGPT may produce the equivalent of a mediocre first draft, which students will then edit and re-edit to improve its quality. But good legal writing is not simply about editing. To be an excellent editor, you must first be an excellent writer and re-writer. That means embracing the writing process and acquiring the skills needed to draft, for example, a persuasive motion or appellate brief. As one professor explains.

Legal writing faculty interviewed by the ABA Journal agree that ChatGPT writing can model good sentence structure and paragraph structure. However, some fear that it could detract from students learning good writing skills. ‘If students do not know how to produce their own well-written analysis, they will not pass the bar exam,’ says April Dawson, a professor and associate dean of technology and innovation at the North Carolina Central University School of Law.’[5]

Professor Dawson may be correct that ChatGPT will reduce bar passage rates. What it will almost certainly do is ensure that students never become excellent persuasive writers. And it will also cause some students to rely on ChatGPT to do the hard work that they should be doing, and that is necessary, to produce quality legal work.  This is the risk that reliance on ChatGPT – particularly for complex legal motions and briefs – engenders.

Ultimately, ChatGPT can certainly have benefits. Among those is increasing efficiency and productivity. But law students still need to have the analytical thinking and writing skills to be able to interpret complex legal texts, draft persuasive legal arguments, and present compelling arguments before a court.  As such, ChatGPT’s benefits must be balanced against the need to train students to think, write, and practice like lawyers.

Perhaps this is an “old school” approach, but that approach has produced extraordinary attorneys who have transformed the law and the legal profession through their advocacy.

Simply put, you cannot replace an intelligent, thinking human being.

 

[1] See Samantha Murphy Kelly, “Chat GPT Passes Exams from Law and Business Schools” (January 26, 2023), available at: ChatGPT passes exams from law and business schools | CNN Business

[2] Reuters, “Chat GPT Passes Law School Exams Despite ‘Mediocre’ Performance” (January 25, 2023) available at: ChatGPT passes law school exams despite 'mediocre' performance | Reuters.

[3] Kelly, supra note 1.

[4] See Ann Nowak, The Struggle with Basic Writing Skills (March 1, 2021), available at: The Struggle with Basic Writing Skills | Published in Legal Writing (legalwritingjournal.org)

[5] Kelly, supra note 1.

March 18, 2023 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (4)

Thursday, March 2, 2023

The Rhetoric of ChatGPT:  What ChatGPT Had to Say About Its Connection to Rhetoric and What We Can Learn from That Response

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

The Rhetoric of ChatGPT:  What ChatGPT Had to Say About Its Connection to Rhetoric and What We Can Learn from That Response

I’ve been thinking about what ChatGPT might mean for the practice of appellate lawyers and their ability to be persuasive.  So, I typed this as a prompt for ChatGPT:

 I am writing a blog post for an audience of appellate lawyers. What should I tell them about the relationship between rhetoric and ChatGPT?

Here’s what ChatGPT replied:

Rhetoric is the art of using language effectively to persuade or influence an audience. In many ways, ChatGPT can be seen as an extension of this art, as it uses natural language processing to generate persuasive and compelling responses to a wide range of prompts.

One of the key advantages of using ChatGPT for rhetorical purposes is its ability to quickly generate high-quality content in a wide range of styles and formats. This can be particularly useful for appellate lawyers, who need to produce persuasive legal arguments and compelling briefs that are tailored to the specific needs of their clients.

At the same time, it's important to remember that ChatGPT is a machine learning model, and as such, it has limitations. While it can generate persuasive responses based on patterns it has learned from large volumes of text data, it cannot understand the nuances of human emotion, context, or intent in the same way that a human being can.

This means that appellate lawyers who use ChatGPT for rhetorical purposes must be careful to ensure that the responses generated by the model are appropriate and effective for their intended audience. They should also be aware that the use of ChatGPT in legal writing is still a relatively new and evolving area, and that best practices are still being developed.

Overall, ChatGPT can be a valuable tool for appellate lawyers looking to enhance their rhetorical skills and produce high-quality legal content. By using the model in conjunction with their own expertise and insights, lawyers can create persuasive and compelling arguments that effectively convey their clients' positions.

Analyzing ChatGPT’s Response

Not a bad response, generally speaking. But what has ChatGPT revealed about itself?  Here’s a brief analysis of some things we can learn about ChatGPT from this response.

            ChatGPT Might Assume Too Much About the Reader

ChatGPT starts with a correct definition of rhetoric and then asserts that ChatGPT is an extension of rhetoric because it uses natural language processing (NLP). But ChatGPT assumes the reader knows what NLP is.  (And later it assumes that the reader knows what a “language processing model” is.)   If you don’t know (I didn’t) what NLP is, here’s a quick definition sourced from IBM:

NLP combines computational linguistics—rule-based modeling of human language—with statistical, machine learning, and deep learning models. Together, these technologies enable computers to process human language in the form of text or voice data and to ‘understand’ its full meaning, complete with the speaker or writer’s intent and sentiment.

So, one thing we learn about ChatGPT from this passage is that it can wrongly assume a reader’s knowledge, something lawyers know better than to do. While we might think that better engineering of ChatGPT’s prompt would solve the problem, recall that I told ChatGPT the audience for whom I was writing. That specific detail in the prompt did not seem to make a difference in ChatGPT understanding that many members of the intended audience would have limited knowledge of the computer science terms associated with ChatGPT. 

            ChatGPT Thinks of Itself as “Art”

I’m intrigued that ChatGPT chose the term “art” when describing itself as an “extension” of rhetoric.  This characterization seems counterintuitive because ChatGPT is the product of computer, data, and language science.  Yet, ChatGPT suggests that because NLP is a human-like effort to understand the meaning of language (as the definition above reflects), ChatGPT sees itself as an “artistic” endeavor, at least regarding persuasion.  And, at least in some cases, ChatGPT has proven that to be true--there’s something that feels like artistry in ChatGPT’s responses to prompts.  (See, e.g., this poem by ChatGPT and the debate around whether ChatGPT’s poetry is “art.”)

If ChatGPT sees itself as art rather than science, then we should take it at its word and think of it as we do art and artists.  That is, as do artists, ChatGPT brings a particular perspective to its responses.  As such, ChatGPT’s response is a form of art—and only one of many responses available.  Just like painters and sculptors can interpret their objects of study differently, ChatGPT’s interpretation of data in a particular response is one of many.  Thinking of this another way, we might view ChatGPT’s responses to prompts as opinions, subject to issues of perspective, interpretation, accuracy, bias, and incompleteness.

            ChatGPT Speaks Like It Wants to Sell You Something, but Should You Buy It?

Although I asked ChatGPT to describe a relationship between two things, ChatGPT’s response feels more like a sales pitch. It makes grand, authoritative-sounding claims about ChatGPT’s value to the user.  It is confident that it can help lawyers persuade and compel by providing “high-quality content in a wide range of styles and formats.”  ChatGPT reminds us that it has “key advantages,” that it can enhance the lawyer’s persuasive skill, and that it can generate high-quality content that can be tailored to client’s needs.

Why might ChatGPT sound so confident?  Maybe ChatGPT’s confidence comes from the way it generates responses.  ChatGPT generates responses by examining a vast amount of data, looking for the patterns and relationships between words in the sample, and then predicting what response is appropriate for the context.  Perhaps because I told it I was writing a blog post, the texts that ChatGPT accessed for context were blogs, and because many blogs are written in a tone designed to sell something, this caused ChatGPT to adopt the same tone by predicting that I was expecting that tone in the response.

Regardless of the reason, this extra-confident tone of the response should give us a reason to scrutinize ChatGPT’s claims more carefully.  If we read closely, we see that the response doesn’t really explains what “high-quality content” means.  On one hand, commentators point out that ChatGPT cannot tell the difference between true and false information and thus can deliver inaccurate responses.  This aspect of ChatGPT, then, is not “high-quality.”  Moreover, ChatGPT’s ability to sound very confident in its responses can lure readers into believing the responses’ truth.  For lawyers, this inaccurate information expressed in a confident tone is a malpractice minefield.  For example, one would not want to rely at face value on what ChatGPT says about some point of law.  (It’s probably useful to remind those in your office who could use ChatGPT of this important point.)

On the other hand, ChatGPT arguably can offer something of high(er) quality in that it can produce a “wide variety of styles and formats.”  You can prompt ChatGPT to write in a particular style—even your own!  You can request it write content in the style and organization of a brief or a motion, and it will comply.  You can ask it to assist in correcting your grammar.  It’s pretty good at offering examples of different genres, styles, and tones of writing.  This is because it is good at providing an approximation of whatever you’ve asked it to create based upon the patterns it recognizes in the dataset.

But here’s the catch, I think, with using ChatGPT to generate “style and format” content: the user must already understand the style and structure he or she seeks in order to evaluate the quality of ChatGPT’s response.  In other words, if you don’t know already what a case caption for, say, the United States Court of Appeals for the Ninth Circuit looks like, how can you be sure ChatGPT will give you the right format for that caption?  Likewise, if you aren’t sure what a good introduction to an appellate brief looks like, how can you know if ChatGPT has given you a good one in its response?   ChatGPT would be good at giving you examples, but it can’t really tell you which one is “best” in your circumstances.

            ChatGPT Knows Its Rhetorical Limits

Even though ChatGPT is confident in its capabilities, it admits that it has limits.  Specifically, ChatGPT responds that it cannot understand emotion, context, or intent like a human does when crafting responses to persuade. This is a pretty significant admission.  To be limited in these ways is relevant to ChatGPT’s persuasive abilities; understanding emotion, content, and intent are elements of human communication that are central to rhetorical effectiveness.  So, even though ChatGPT sees itself as an “extension” of rhetoric, it is a fairly limited extension.

 ChatGPT reminds us that one of its limitations is that it generates persuasion from finding patterns in large amounts of existing data.  So, that raises the problem of “garbage in,” “garbage out.”  In other words, the quality of ChatGPT’s responses is only as good as the data it can access.  That is, if the dataset has both helpful and unhelpful patterns that inform ChatGPT’s responses, how does one know if what ChatGPT generated is something worth relying on?  The only way to know is to already have the knowledge essential to evaluating the response.

            In the End, ChatGPT is Deferential about Its Writing

ChatGPT says it is the appellate lawyer’s job to ensure what ChatGPT writes is effective for the intended audience.  It talks about itself as a “model” that can help lawyers be persuasive and reminds lawyers that the model should be used in conjunction with lawyers’ expertise and insights.  In other words, ChatGPT does not take the position that it replaces humans in the writing process—particularly where audience analysis and professional expertise is involved.  Here, ChatGPT makes a significant rhetorical move—it reminds you that the technology is only as good as its user and, even after all of its confidence above, disclaims responsibility for the usefulness of its output. Fascinating.

Some Takeaways

ChatGPT notes that it is new enough that “best practices” for using ChatGPT in legal writing are still being developed. I take this as a challenge!  Based upon ChatGPT’s rhetoric (i.e., the way it uses language to talk about itself), I’ll propose some best practices for you:

  • Do not be misled by ChatGPT’s confidence. ChatGPT sounds confident and authoritative in its responses, but users should be skeptical about the legitimacy of that confidence.
  • Rely on your own expertise, not ChatGPT’s. Appellate lawyers (and staff working for them) need to have an existing knowledge base to evaluate ChatGPT’s responses.  In particular, evaluating the appropriateness of the response for an audience is essential.  As with all aspects of outsourcing judgment in legal practice, outsourcing judgment to ChatGPT is dangerous.  At the very least, for appellate lawyers to use ChatGPT effectively, they will need to become familiar with prompt engineering techniques that make ChatGPT more expert in the field and thus arguably improve ChatGPT’s responses.
  • Treat ChatGPT as opinionated, not authoritative. Although ChatGPT is the product of science, ChatGPT should be seen as an artistic process, generating content that is more like opinion than unassailable fact.  Treat ChatGPT as conversation partner, muse, or collaborator than can help you “play” with ideas and text.  (Check out Ian Bogost’s article insightfully concluding that “ChatGPT  . . . doesn’t understand or even compose text. It offers a way to probe text, to play with text, to mold and shape an infinity of prose across a huge variety of domains . . . into structures in which further questions can be asked and, on occasion, answered.)
  • Remember that ChatGPT relies on pattern recognition, a limited mode of persuasion. ChatGPT does not have all the rhetorical capabilities of humans but can recognize patterns in data that might have persuasive impact.  Even if that pattern recognition is persuasive, users must remember to look at persuasion from all aspects of the human experience, not just in the ways that ChatGPT looks at it.
  • Remember that ChatGPT does not guarantee competent writing, you do. At bottom, ChatGPT does not claim it is superior to you in writing ability but rather it remains deferential to your experience and expertise. It disclaims its ability to effectively write for your “local” audience.  No one—not even a computer—knows your clients, your arguments, and your audience better than you do.  Rely on your own judgment about competent writing.

What are your thoughts?

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Co-Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently working on a writing handbook written specifically for trial lawyers. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at [email protected].

March 2, 2023 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (1)

Saturday, December 17, 2022

2022 Top Legal Terms Include “Complicit Bias,” “False Narrative,” and “Nuclear Option,” According to Burton’s Legal Thesaurus

Happy December!  Whether you are scrambling to finish grading, like me, or wishing for a holiday with no emergency writs or motions, I hope you are enjoying the many lists of odd and interesting things lawyers did in 2022.  Recently, I saw the newest edition of Burton’s Legal Thesaurus, the Fortieth Anniversary/Sixth Edition, and the editors have added some intriguing new terms as top legal phrases in 2022.

For example:  “Attorneys were busy discussing ‘complicit bias,’ arguing about ‘lawfare’ and discussing the ‘great reshuffle’ this past year, according to Burton's Legal Thesaurus, which released its list of 2022's top new legal terms.”  Karp, “Meme Stock,” “Quiet Quitting” Among Top New Legal Terms, Law360 (Dec. 13, 2022).   “Complicit bias” means “community complicity in sustaining institutional bias and harassment in the workplace.”  See Michele Goodwin, Complicit Bias: Sexual Harassment and the Communities that Sustain It, Huffington Post (Dec. 11, 2017) (credited with creating this new term). 

Other neat new terms include “False Narrative” and “Nuclear Option.”  “False narrative” is a noun, according to Burton’s, and unsurprisingly means:  “a contrived story, artifice,” and “distortion of truth.”  Burton’s confirms the political root of “nuclear option,” defining it as a noun meaning “abolish the filibuster, change in voting, change to majority vote for passage in the US Senate,” or “drastic action, extreme action.”  In a recent Sixth Circuit case showing one way lawyers are using the term, the court found no abuse of discretion where the district court “allowed [a party] to introduce its [opponents'] threats to stop shipping parts into evidence and to compare those threats to a ‘nuclear option.’”  Stackpole Int'l Engineered Prods. v. Angstrom Auto. Grp., LLC, 52 F.4th 274, 284-85 (6th Cir. 2022).

Burton’s contains over 3,000 pages of definitions, but Debra Cassens Weiss summarized some other new items from Burton’s 2022 Top Ten list, including:  “‘Lawfare,’ meaning the use of legal proceedings to damage an adversary; [t]he ‘Great Reshuffle’ a variation of ‘Great Resignation,’ referring to people leaving jobs; [and] ‘Movement law,’ an approach to legal scholarships that works with social movements, rather than simply studying them.”  Cassens Weiss, 'Complicit bias' and 'lawfare' among top new legal terms in 2022, ABA Journal (Dec. 14, 2022).  Cassens Weiss also explained:  “Margaret Wu, a legal writing professor at the University of California at Berkely School of Law, is chair of the Select Committee on Terminology of Burton’s Legal Thesaurus,” and “Wu told Law360 . . . ongoing effects of the COVID-19 pandemic, “sea changes” at the Supreme Court, diversity and equity initiatives and technology” influenced this year’s terms. 

In its pitch for Burton’s Sixth Edition, LexisNexis explains:  “As Justice William O. Douglas penned in his 1979 foreword to Burton’s Legal Thesaurus, ‘[t]he root of all language is individual word. Often, it is the use of a specific word or term upon which a case or controversy may hinge. It is through the use of such a tool as the Legal Thesaurus that one may find the precise term to fit the nuances of a particular situation.’”   Whatever resources you use to find perfect words this month, I wish you happy writing and happy holidays.

December 17, 2022 in Appellate Advocacy, Appellate Practice, Books, Current Affairs, Legal Writing, Rhetoric | Permalink | Comments (0)

Sunday, September 18, 2022

History Rewritten to Serve Selfish Ends – and Serve an Argument

 

Quite appropriately, Moore v. Harper, the upcoming Supreme Court case that tests the validity of the “independent state legislature” theory, has set off alarm bells about the future of democracy in the United States. The theory holds that state legislatures hold exclusive authority to make decisions about congressional elections, unless overridden by Congress, based on the Constitution’s Elections Clause, Article I, Section 4, Clause 1. The Clause designates Congress and the states as holding responsibility to set the “Times, Places and Manner of holding Elections for Senators and Representatives.” Restrictions on state legislative authority imposed by a state constitution, including judicial enforcement of equal voting and non-discrimination mandates, the theory holds, must give way, rendering the state legislative determinations immune from judicial review, under the theory. When combined with Article II, Section 1, which assigns the manner for appointing presidential electors to state legislatures as well, the election denialism that has become a standard feature of the Trump political era could gain a permanent constitutionally blessed footing, potentially allowing state legislatures to overturn voters’ choices and name its majority party’s candidates the winners.

Today, however, one day after the Constitution’s 235th anniversary, my topic is not how the “independent state legislature” theory realizes Justice Robert Jackson’s fear that the courts would read the Constitution in such a rigid insensible way that it becomes a “suicide pact.”[1] Instead, I want to focus on the North Carolina legislature’s use of history to support its argument as petitioner in the case. Given the originalist outlook that dominates the Supreme Court, it is unsurprising that parties appeal to history to support their desire outcome. What separates this brief from the usual attempt to invoke history, is its reliance on a widely debunked document to advance its cause.

The Petitioner’s opening brief tells the Court not to look at James Madison’s Virginia Plan for how to conduct federal elections because it is silent on the issue. Instead, it invokes the “alternative ‘Pinckney Plan,’” which contains remarkably similar language to what the Constitution says and is denominated in the brief as the “progenitor” of the Elections Clause. Because no other document that the Committee of Detail may have reviewed contained any plan similar in kind, the brief calls the Pinkney Plan confirmation of a deliberate choice to cede authority to the legislature.

The brief overlooks the fact that the original Pinckney Plan did not survive the Constitutional Convention and is lost to history. In a new article in Politico, Ethan Herenstein and Brian Palmer of the Brennan Center for Justice, explain that the “Pinkney Plan” is actually an 1818 draft by Charles Pinckney that was a revisionist attempt to claim more credit for the Constitution than Pinckney deserved.[2] As Herenstein and Palmer put it, during the Constitutional Convention, the records show that “the framers hardly discussed Pinckney’s plan and, at key moments, rejected his views during the debates.” They go on to cite James Madison’s reaction as “perplexed” by the document Pinckney released in 1818 “because he was ‘perfectly confident’” the new document “was ‘not the draft originally presented to the convention by Mr. Pinckney.’”

Madison noted that the similarity of language to the Constitution’s final text could not have been part of a plan at the Convention because framers hammered out its wording through long running internal debates that would not have occurred if a plan had already spelled them out. Moreover, Pinckney’s well-known positions at the Convention were at odds with what he now claimed to have proposed. For example, at the Convention, Pinckney argued that state legislatures should elect members of the House, but his 1818 document purports to show he favored popular election.[3]

Herenstein and Palmer assert that “nearly every serious historian agrees that the 1818 document is a fake.” They quote historian John Franklin Jameson’s statement in 1903 that the so-called draft was “so utterly discredited that no instructed person will use it as it stands as a basis for constitutional or historical reasoning.” Another researcher they quote called it “the most intractable constitutional con in history.”

Substantial additional support exists to doubt the veracity of the Pinckney Plan. Madison suggested that Pinckney rewrote his own plan weaving in passages from the Constitution, and that the intervention of 30 years made Pinckney’s memory of what was his and what was not flawed. Others put it less kindly. Historians, more than a century ago, described the document as a “pseudo draft” that “should be relegated to the depository of historical lies.”[4] Clinton Rossiter’s respected history of the Constitutional Convention written in 1966 simply dubbed it a “fraudulent document.”[5]

The reason the 1818 document exists is because Congress overrode the Framers’ own decision to keep their deliberations secret. President Monroe dispatched Secretary of State John Quincy Adams to assemble the records. While he found mention of a plan by Pinckney, no such document existed. He asked Pinckney for a copy, In Pinckney’s response, he claimed to have four or five drafts of the Plan but did not know which most accurately reflected his original plan and how much his re-writes changed the plan as his own views had changed over time.[6] The Petitioner’s brief recounts none of this history, but instead treats the document as authoritative.

Every state has adopted the Model Rules of Professional Conduct, which requires candor to the tribunal. It prohibits a lawyer from making “a false statement of fact or law to a tribunal or fail[ing] to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”[7] The lack of candor in this brief may violate the Rule.

Will there be consequences to the use of this document or a failure to suggest its questionable providence? I doubt it. Will a member of the Court or even a majority cite it as authoritative as the petitioner has? Unfortunately, that seems likely. In responding to the historical basis for the end-of-the-term abortion decision in Dobbs v. Jackson Women’s Health Org.,[8] the American Historical Association and the Organization of American Historians expressed dismay that their amicus brief’s description of the relevant history was not taken “seriously” and that the Court instead “adopted a flawed interpretation of abortion criminalization that has been pressed by anti-abortion advocates for more than 30 years.”[9] Similarly, in SCOTUSblog, Saul Cornell, a Fordham University historian, called the history relied upon by the majority in the Second Amendment case of New York State Rifle & Pistol Association v. Bruen,[10] “a version of the past that is little more than an ideological fantasy, much of it invented by gun-rights advocates and their libertarian allies in the legal academy with the express purpose of bolstering litigation.”[11]

Regardless of whether these assessments are over-the-top or shaded by a predisposition on the underlying issue, the concern that history is manipulated to achieve an end applies with greater force to the courts.  Even as strong an advocate of originalism as Justice Scalia was worried that selective use of past events could predominate because “history, as much as any other interpretive method, leaves ample discretion to “loo[k] over the heads of the [crowd] for one’s friends.”[12] The danger is not just that an important issue is settled by a skewed view of history. It is also that the re-written history appears in an authoritative text that now controls future precedent and even the nature of future issues as though settled.

If, for example, a majority of the Court were to rely on Charles Pinckney’s 1818 document as reflecting what the framers of the Constitution might have thought, not only could they reach the wrong result, it would create an even greater schism in this country on the essential form of our republic, reading the Constitution as mandating what would surely be a suicide pact. And when a future, indisputably valid election is overturned, the courts may have nothing to say about the legislative coup that took place.

More trivially, another consequence would be to achieve the project that Charles Pinckney set for himself: a revision of history that would make him the true father of the Constitution – and a title he did not desire as the Constitution’s grim reaper.

 

[1] Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).

[2] Ethan Herenstein and Brian Palmer, “Fraudulent Document Cited in Supreme Court Bid to Torch Election Law,” Politico Mag. (Sept. 15, 2022, available at https://www.politico.com/news/magazine/2022/09/15/fraudulent-document-supreme-court-bid-election-law-00056810.

[3] 9 The Writings of James Madison 553-54 (Gaillard Hunt ed., 1910).

[4] Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA L. Rev. 421, 479 n.39 (2009).

[5] Id. (quoting Clinton Rossiter, 1787: The Grand Convention 331 n.* (1966)).

[6] Id. (citing Letter from Charles Pinckney to John Quincy Adams (Dec. 30, 1818), in 3 The Records of the Federal Convention of 1787, at 427-28 (Max Farrand ed., 1911).

[7] Model R. of Prof. Conduct 3.3.

[8] Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022).

[9] History, the Supreme Court, and Dobbs v. Jackson: Joint Statement from the American Historical Association and the Organization of American Historians (July 2022), available at https://www.historians.org/news-and-advocacy/aha-advocacy/history-the-supreme-court-and-dobbs-v-jackson-joint-statement-from-the-aha-and-the-oah-(july-2022).

[10] New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).

[11] Saul Cornell, Cherry-picked history and ideology-driven outcomes: Bruen’s originalist distortions, SCOTUSblog (Jun. 27, 2022, 5:05 PM), https://www.scotusblog.com/2022/06/cherry-picked-history-and-ideology-driven-outcomes-bruens-originalist-distortions/.

[12] Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 377 (2012).

September 18, 2022 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Writing, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Sunday, September 4, 2022

Presenting Issues as an Advocate

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

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

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

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

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

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

Instead, the Court presented the issue as:

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

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

 

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

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

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

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

September 4, 2022 in Appellate Advocacy, Appellate Practice, Legal Writing, Rhetoric | Permalink | Comments (0)

Thursday, August 4, 2022

Putting the Audience First: The Writing Tactic of Restatement

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

Putting the Audience First:  The Writing Tactic of Restatement

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

Audience-First Perspective, Effective Writing Choices

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

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

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

Restatement as a Tactic of Audience-First Writing

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

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

Signposts should accompany restatements.  Good signposts for restated information include

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

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

Examples of Restatement from Appellate Briefs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Recap

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

What do you think about restatement?

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

August 4, 2022 in Appellate Advocacy, Legal Writing, Rhetoric | Permalink | Comments (0)

Saturday, July 30, 2022

The Hallmarks of a Great Appellate Brief

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

1.    Start strong and get to the point quickly.

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

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

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

2.    Focus on the facts.

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

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

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

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

3.    Adopt a more objective tone.

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

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

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

4.    Break the rules – sometimes.

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

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

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

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

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

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

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

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

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

Avoid making these and other mistakes at all costs.

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

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

July 30, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)