Appellate Advocacy Blog

Writing Briefs, Rather than Literary Works

Some great literary works feature elegant and meticulously assembled sentences of considerable length. They carry you away like a leaf dancing in the wind, sending you headfirst into a wonderous and unfamiliar world. Like an evocative musical passage, it demands attention and provokes both emotions and thoughts that you know will reach completion in a way and with timing not yet knowable. It achieves its goals by sowing confusion and surprise in a calculated fashion but its words seem to be uttered breathlessly with the elongation of a wind instrument’s musical note held longer than thought humanly possible.

The task of brief writing plays a markedly different tune, even if it embodies literary qualities unique to the genre. It seeks not to astonish but to develop a clear, logical, and compelling path to the advocate’s preferred result. A brief advances abstract legal concepts but then dresses them in examples, often drawn from precedents that provide concrete applications that align with the case at hand.

The best brief writers prepare the reader for what is to come. The opening sentence of a section or a paragraph will provide a signpost about what is ahead. It prepares the reader to receive the thought. A sentence that begins with “ordinarily” advises a reader that the rest of the sentence will declare something familiar and seemingly unassailable. Yet, it also signals the reader that the sentences that follow will explain why this case does not involve ordinary circumstances but a distinctive situation that demands a conceptually different approach.

Signals may be individual words, or they may be clauses or full sentences. In one argument I had before the Supreme Court, Justice Breyer asked me to name the best precedent to support my point. He correctly anticipated the case I would cite. He told me that he had the case in front of him and asked me to explain a sentence in it that seemed to undermine my point. The Respondent’s reply brief also homed in on that sentence. I responded to Justice Breyer by explaining that he (as well as my opponent) had left off a dependent clause that proceeded the words he quoted. That clause, I explained, changed the sentence’s meaning in my favor. Justice Breyer chuckled at my response and agreed with my position. Rather than serve as a question designed to trip me up, he was looking to evoke the response I made.

The episode also demonstrates that judicial opinions often have signals or signposts to aid the reader in understanding the ruling. The legal issues that often provide the fodder of appeals usually involve submerged complexities lurking below the simplicity found on the surface. The writer who wishes to provide a clear path to a result understands that a brief or court opinion may need to build toward that end by assuring that the reader anticipates the path ahead as essential to understanding why it compels a favorable result.

A Few Unconventional Writing Tips

Great writing is not simply about following conventional rules. It is about knowing when—and how—to use unconventional writing techniques that enable creativity and enhance persuasion. Below are a few unconventional writing tips that can improve the quality and persuasiveness of your brief.

1.    Reverse the narrative.

There is no such thing as “legal” writing. There is only great writing (and writers).

The best “legal” writers do not simply use conventional writing techniques. Rather, they are creative. They break the “rules” when necessary. Most importantly, they use the same literary techniques used in fiction, narrative non-fiction, and memoirs.[1]

One of these techniques is reversing the narrative. Doing so means that you begin your narrative at the end, not the beginning of the story. The objective is to create a compelling opening scene that captures the audience’s attention and enables them to invest in your story on a personal and emotional level.

Consider the following examples involving a hypothetical case where a plaintiff is suing an airline after a plane crash took the lives of the plaintiff’s two children.

Example 1:

Universal Airlines Flight 5638 departed from Los Angeles International Airport on June 12, 2023, carrying 128 passengers, and bound for Newark, New Jersey. The plane, a Boeing 737, took off without incident and climbed to 35,000 feet. For the next two hours, except for moderate turbulence, the flight proceeded without incident. However, approximately two-and-a-half hours into the flight, the pilots struggled to control the plane, as it lost altitude at a rate of 2,000 feet per minute. Attempting to regain control of the plane, the pilots increased the plane’s speed and rate of ascent, but despite these efforts, the plane entered an aerodynamic stall from which the pilots could not recover because their ability to control the plane diminished substantially. Sadly, the plane crashed in Omaha, Nebraska, killing the pilots, crew, and all 128 passengers. The National Transportation and Safety Board concluded that a fire in the plane’s cargo hold, which was caused by faulty wiring, caused the pilots to lose control of the plane and led to the crash. Universal Airlines was negligent in failing to identify and repair the faulty wires and, as a result, is liable to the plaintiff for damages.

Example 2:

Omaha, Nebraska, a vibrant city where the College World Series is played annually and was scheduled to begin on June 14, 2023, lost its innocence two days earlier on June 12, 2023. In a field spanning 500 yards, 128 bodies, most of which were unrecognizable, lay dead. Among them were fourteen children, including five under the age of three, four beloved high school teachers, and a husband and wife who were traveling to New York with their children to visit Manhattan for the first time. Scattered across the debris field were clothing, jewelry, and stuffed animals. The most heartbreaking discovery was a letter written by a passenger as the plane was going down, which read “Mom, I will always love you.” The tragedy’s magnitude is immeasurable, and the most disturbing aspect is that it was preventable. Universal Airlines had the ability—indeed the responsibility—to fix the faulty wiring in Flight 5638’s cargo hold and to ensure the safety of its passengers. They did not. Valuing profit over safety, Universal Airlines, knowing that the wiring was faulty, deemed it an “acceptable” risk and continually certified that the plane was airworthy, even though it knew that the wiring was essential to maintain the plane’s hydraulic system. As a direct and proximate result of this negligence, 128 passengers never made it to New York. Their final resting place is in Omaha where only a few articles of clothing, stuffed animals, and a letter stating, “Mom, I will always love you,” remain.

This second example, while not perfect, is better. First, it begins at the end and, in so doing, captures the reader’s attention. Second, it appeals to the reader on a personal and emotional level by describing in vivid detail the gravity of this tragedy. Third, it personalizes the victims and emphasizes the need to reach a just result that compensates their families for this tragedy.

Ultimately, think of writing in the same way as directing a movie. Does your narrative hook the audience and maintain its attention? Does it appeal to their emotion? Does it include vivid descriptions that place the reader in the character’s shoes as the character is experiencing noteworthy events? Does it relate to you on a personal level and leave a meaningful—and lasting—impression? Often, beginning at the end is an effective technique by which you can achieve these objectives.

2.    Tell a non-linear story.

Sometimes, you should avoid telling a story, such as in a statement of facts, chronologically. This can produce a tedious narrative that loses the reader’s attention and fails to engage the reader on any meaningful level. It is often more effective to embrace non-linear storytelling, in which you focus your narrative on the major events in the story to highlight, for example, the damage your client has suffered or the appropriateness of the relief you request.

Consider the following examples involving a defamation lawsuit, in which the plaintiff claims that the defendant’s alleged defamatory statements led to substantial reputational harm.

Example 1:

The New Jersey Bobcats drafted the plaintiff in the first round of the major league draft after the plaintiff had a batting average of over .325 during three seasons at the University of Southern California. After two seasons in the minor leagues, the plaintiff was called up to the Bobcats’ major league team, where he played in forty-seven games, batting .279 while committing no errors at shortstop. It quickly became evident, however, that the Bobcats’ manager, Mike Johnson, did not like the plaintiff, likely because the Bobcats had chosen to call up the plaintiff to the major leagues rather than the Bobcats’ other top prospect, Jason Warner, whom Johnson stated publicly was a superior player. Angered by this decision, Johnson berated the plaintiff repeatedly in front of the players and fans and benched the plaintiff for the last two games of the regular season. After the season ended, the plaintiff met with the Bobcats’ general manager and requested to be traded. Subsequent trade talks with several teams, however, proved unsuccessful because of an article published by the New Jersey Times in which Johnson stated that the plaintiff was a bad baseball player, selfish, lazy, and uninterested in the team’s success. The plaintiff also discovered that Johnson had spoken to many teams’ general managers and warned them against acquiring the plaintiff. As a result, although initially expressing interest, no teams decided to acquire the plaintiff, and he was demoted to the Bobcats’ minor league affiliate the next season and eventually released. Johnson’s statements were defamatory and entitle the plaintiff to damages.

 Example 2:

Mike Johnson, the head coach of the New Jersey Bobcats, despised the plaintiff. Indeed, Johnson stated publicly to the media and general managers throughout the major leagues that the plaintiff was a “horrible person,” “a cancer in the Bobcats locker room,” a “below average player who could never succeed in the major leagues,” “a team’s worst nightmare,” and “one of the worst hitters he has ever seen.” Additionally, in the days before he was demoted to the Bobcats’ minor league system, Johnson publicly mocked the plaintiff in the Bobcats’ locker room, calling him a “joke” and “the worst thing to happen to the Bobcats in the last twenty years." Johnson made these statements even though the plaintiff batted .279 – and committed no errors -- in forty-seven games as the Bobcats’ starting shortstop.  Due to Johnson’s abusive behavior, the plaintiff requested a trade, and despite six teams expressing initial interest in acquiring the plaintiff, every one of them declined to pursue the plaintiff after Johnson made the above statements to their general managers. These statements, which were false and defamatory, ruined the plaintiff’s reputation and made it impossible for the plaintiff to pursue the successful baseball career that he had worked so hard for and rightfully earned.

Again, the second example is not perfect but is better than the first. Instead of telling the story chronologically, the second example begins with Johnson’s statements, reflecting the extent of Johnson’s hatred of the plaintiff, and which the plaintiff’s performance on the field contradicts. As a result, the second example portrays Johnson as an unsympathetic figure and someone who intentionally disseminated false information to harm the plaintiff’s reputation. This highlights the benefit of telling a story non-chronologically where the facts warrant.

3.    Break the rules.

This point requires little explanation. In law school, you will learn about IRAC/CRAC and conventional writing techniques, which are useful in many instances. However, great writers know that sometimes you should break the rules.  For example, sometimes you should be redundant. You should use the passive voice. You should use a little hyperbole. You should tell, not show, especially if showing involves including irrelevant or unnecessary details. Knowing when to break the rules is a hallmark of great writers.

In short, the best writers know how to think, not just how to write. They think about how best to tell a story, and sometimes that involves breaking the rules to maximize the persuasiveness of an argument.

 

[1] If you doubt this, read John Roberts’ brief in Alaska v. EPA, which is among the best briefs written in a case pending before the United States Supreme Court.

Don’t Forget to Flush

“This stall has a manual flush toilet.  Don’t forget to flush.” 

This is a sign posted in one of the restroom stalls at my institution.  And it irks me every time I see it.  I want to bring my red pen, cross out “Don’t forget,” and replace it with “Remember.”  Why?  Because “remember” is more concise than “don’t forget,” and the cognitive effects of negation on reading comprehension make it more likely that a reader will fail to flush because of the sign.

A lot of psycholinguistic researchers have studied the cognitive effects of negation.  It is generally understood that negation slows both processing speed and accuracy: “[N]egated phrases/sentences are processed with more difficulty (slower, with more errors) than the affirmative counterparts.”[i]  And a recent study discovered that negation can also thwart purpose and intent.

“Intuitively, negated concepts (e.g., ‘not good’) entertain some relation with the affirmative concept (e.g., ‘good’) as well as their counterpart (e.g., ‘bad’).”[ii]  In other words, “negation can either eliminate the negated concept and convey the opposite meaning (‘not good’ = ‘bad’) or mitigate the meaning of its antonym along a semantic continuum (‘not good’ = ‘less good,’ ‘average,’ or ‘somehow bad’).”[iii]

The fact that negation results in multiple possible meanings is not new information; any elementary school educator could tell you that instructing students to “walk in the hallways” is far more effective at obtaining the desired end than directing students, “don’t run in the hallways.”  The former instruction limits the universe of acceptable hallway behavior, while the latter eliminates only one of many possible means of hallway activity (i.e., while not running, one could still skip, somersault, dance, or skateboard in the hallways and comply with the directive).

But researchers discovered that, between the options of elimination and mitigation of a negated concept, people were more likely to interpret negation as mitigating, rather than eliminating, the concept.[iv]  In other words, a reader faced with the sentence, “this coffee is not hot,” is more likely to understand the coffee to be something less than hot (e.g., room temperature) rather than cold.[v]

An additional issue arises with the use of negation—priming your audience for a potentially undesired outcome.  In my restroom example, the word choice in the sentence, “Don’t forget to flush,” primes the reader to forget (the undesired result), rather than remember (the desired result).  And the word choice coupled with the fact that readers tend to overlook the word “not” makes it more likely that the sign would cause someone to forget, rather than remember, to flush.

As professional wordsmiths, attorneys should use care in their choice of when and how to use negation in their writing, recognizing its potential effects on both meaning and understanding.

 

[i] Arianna Zuanazzi, Pablo Ripollés, Wy Ming Lin, Laura Gwilliams, Jean-Rémi King, David Poeppel, Negation mitigates rather than inverts the neural representations of adjectives, PLOS Biology (May 30, 2024), available at: https://journals.plos.org/plosbiology/article?id=10.1371/journal.pbio.3002622 (last accessed July 7, 2024).

[ii] Id.

[iii] Id.

[iv] Id. The researchers also noted that their findings were limited to scalar adjectives (i.e., those that occur on a continuum), rather than true dichotomies (e.g., “dead” versus “alive”).

[v] NPR, Short Wave Science (June 3, 2024), available at https://www.npr.org/transcripts/nx-s1-4978901. Another issue arises with negation—a lack of clarity with respect to which part of the sentence is affected by the negation.  In other words,

in a sentence like Rachel did not bake the bread, potential alternatives for the negation can be found along the dimension of the actor, along the dimension of activities and along the dimension of the patient, that is, Rachel could have baked something else, e.g., a cake, she could have done something else to the bread, e.g., cut it, or someone else could have baked the bread.  As the example demonstrates, alternatives are semantically related to the negated information (e.g., entity, event).

Viviana Haase, Maria Spychalska, Markus Werning, Investigating the Comprehension of Negated Sentences Employing World Knowledge: An Event-Related Potential Study, Frontiers in Psychology (Oct. 2019), available at:  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6843029/ (last accessed July 7, 2024).

Neurodiversity and Legal Advocacy: Dyslexia

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

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

1.    Strengths

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

    A.     Big Picture Thinking

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

    B.     Problem Solving

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

    C.     Creativity

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

    D.     Empathy

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

    E.     Spatial Reasoning

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

    F.     Communication

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

2.     Challenges and coping mechanisms

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

    A.     Organization.

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

    B.     Spelling and Grammar.

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

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

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

    C.     Instructions.

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

    D.    Short-Term and Working Memory.

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

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

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

    E.     Managing Emotional Impact.

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

3.     Conclusion

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

 

Further Reading

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

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

 

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

On Using ChatGPT for Statutory Interpretation

Judge Kevin Newsom of the Eleventh Circuit Court of Appeals recently wrote a concurring opinion in an insurance case involving an issue of statutory interpretation.[i]  Specifically, the question was whether a landowner’s in-ground trampoline constituted “landscaping” under a policy that provided him coverage for negligence arising from “landscaping” work but provided no definition of “landscaping.”[ii]

After reviewing numerous dictionary definitions of landscaping and finding all of them leaving “a little something to be desired” because none of them fully captured his own understanding of the term, Judge Newsom confessed to having consulted various generative AI tools (out of pure academic curiosity) for a definition.[iii]  While the case was ultimately resolved on a different question, Judge Newsom chose to use his concurring opinion as a platform to discuss the potential use of generative AI for statutory interpretation, specifically when the issue involves discerning the plain and ordinary meaning of a word.[iv]

He concluded that large language models (LLMs), such as ChatGPT, might be useful in the interpretation of legal texts.[v]  He followed his conclusion with a list of benefits and risks of doing so.

Judge Newsom identified the benefits as follows: 

(1) “LLMs train on ordinary-language inputs,” thereby reflecting the “common speech of common people”;[vi]

(2) “LLMs can ‘understand’ context,” which allows them to “discern the difference—and distinguish—between the flying-mammal ‘bat’ . . . and the wooden ‘bat’” used in baseball;[vii]

(3) “LLMs are accessible,” which can both “democratiz[e] the interpretive enterprise” and provide “an inexpensive research tool”;[viii]

(4) “LLM research is relatively transparent” because we know they are trained on “tons and tons of internet data” and because they provide the opportunity for judges to “show their work” by disclosing “both the queries put to the LLMs . . . and the models’ answer”;[ix] and

(5) “LLMs hold advantages over other empirical interpretive methods,” such as conducting broad surveys and corpus linguistics.[x]

Judge Newsom also recognized the following risks: 

(1) “LLMs can ‘hallucinate’”;[xi]

(2) “LLMs don’t capture offline speech, and thus might not fully account for underrepresented populations’ usages”;[xii]

(3) “Lawyers, judges, and would-be litigants might try to manipulate LLMs” by reverse-engineering a preferred answer;[xiii] and

(4) “Reliance on LLMs will lead us into dystopia” where “‘robo judges’ algorithmically resolv[e] human disputes.”[xiv]

Though Judge Newsom found each of the identified risks to be either non-fatal or easily mitigated, I’m not sure he fully appreciated the potential that the LLMs might fail to account for word usage among underrepresented populations.  The inherent bias baked into generative AI is well documented.[xv]  One study in particular “revealed systematic gender and racial biases in [multiple] AI generators against women and African Americans. The study also uncovered more nuanced biases or prejudices in the portrayal of emotions and appearances.”[xvi]

If a benefit of using LLMs to discern ordinary meaning is their ability to “democratiz[e] the interpretive enterprise,” then we should also be giving more consideration to websites such as Urban Dictionary and Wikipedia.

But the primary concern with a judge using any of these sources to discern “ordinary meaning” is that, in doing so, the judge becomes an advocate by both proposing and relying on a new definition not previously advanced or supported by any party.  Admittedly, the same concern is true when judges consult dictionaries for definitions, but I’ve previously identified my concerns with that approach.

Despite the drawbacks of relying on LLMs and other unconventional sources, Judge Newsom makes some very good points about their potential utility. Perhaps the best approach lies somewhere in between complete reliance and absolute prohibition.  Perhaps we should create standardized rules regarding the appropriate usage (by courts and litigants alike) of readily accessible, crowd-sourced information, such as LLMs, Urban Dictionary, and Wikipedia.[xvii]

And we could throw in dictionaries as well for good measure.

 

[i] Snell v. United Spec. Ins. Co., No. 22-12581, slip op. at 1 (11th Cir. May 28, 2024) (Newsom, J., concurring), https://media.ca11.uscourts.gov/opinions/pub/files/202212581.pdf#page=25 (last accessed June 10, 2024).

[ii] Id. at 1-2.

[iii] Id. at 5-6, 8.

[iv] Id. at 4.

[v] Id. at 10.

[vi] Id. at 11.

[vii] Id. at 14-15.

[viii] Id. at 15.

[ix] Id. at 16, 18, 19.

[x] Id. at 19-20.

[xi] Id. at 21.

[xii] Id. at 22.

[xiii] Id. at 23.

[xiv] Id. at 24-25.

[xv] Nettrice Gaskins, The Boy on the Tricycle: Bias in Generative AI (May 1, 2024), available at: https://nettricegaskins.medium.com/the-boy-on-the-tricycle-bias-in-generative-ai-d0fd050121ec#:~:text=While%20generative%20AI%20has%20numerous,against%20women%20and%20African%20Americans (last accessed June 10, 2024).

[xvi] Id.

[xvii] See Leslie Kaufman, For the Word on the Street, Courts Call Up an Online Witness, New York Times (May 20, 2013), available at: https://www.nytimes.com/2013/05/21/business/media/urban-dictionary-finds-a-place-in-the-courtroom.html.

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.

Justices, Not Judges

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

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

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

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

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

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

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

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

Lessons in Resilience from Moot Court

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

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

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

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

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

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

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

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

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

Teddy Roosevelt is often quoted for saying:

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

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

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. 

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.

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.

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.

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.

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].

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.

Court opinions are more than soundbites

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).

Legal Communication and Rhetoric: JALWD Turns 20

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

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

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

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

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

 

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

Demeanor in the virtual courtroom

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

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

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

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

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

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

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

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 11^th 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 11^th 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].

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.