Appellate Advocacy Blog

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

Tuesday, May 28, 2019

Getting to Know Your Audience

Lets harmonize

In my last post I talked about the importance of tailoring your arguments to your panel. This week, I want to provide some practical advice on how to get to know your justices.

The first step is to know what they have written on in relation to your case. Most likely, you are already doing this as part of your legal research. Taking the time to take notes and reference authoring or dissenting justices will let you know if one of your justices has written on your issue in the past, and the approach they have taken to similar types of analysis.

This step should be a starting place for your analysis, not an end-point. As discussed earlier, judges are people, too, and their prior opinions may give you the “what” of their past reasoning, but not necessarily the “why.” To figure that out, you have to go a bit deeper.

There are a dizzying array of resources available for that task. Be aware that some are put together with particular social agendas in mind, or based on a particular experience with a judge, and are thus likely slanted one way or another. Recourse to several tools or sources is thus necessary to get a complete picture. These resources include:

In addition to these online nationwide resources, you can also find background information in court biographies, state and local bar association websites, campaign websites (for those judges who are elected or retained by vote), social media websites, news outlets, and by simply “Googling” the judge. Offline, don’t forget your own network of peers who will have insights based on their personal experiences.

When you have looked over these resources, you will have a better idea of what makes your particular judge or panel of justices “tick.” You can then tailor your argument to their life experiences in a way that will help them better understand your case. Be sure to stay mindful about the proper ways to do so, as discussed earlier.

If you know of a good resource that I did not list, please let me know.

(Image credit: Gene Elderman, Washington Post, January 7, 1937)

May 28, 2019 in Appellate Advocacy, Appellate Practice, Legal Writing, Oral Argument, Rhetoric, State Appeals Courts, Web/Tech | Permalink | Comments (0)

Saturday, May 18, 2019

There, but for the grace of God, go I

A few weeks back, Deputy Assistant Attorney General Thomas Ward argued before the Fourth Circuit.  What followed "May it please the Court," has become a lesson for appellate practitioners everywhere:  Always remember your audience. 

The case is Sanders v. United States, No. 18-1931.  It's a pretty important case in its own right.  Sanders is a Federal Tort Claims Act case.  The plaintiffs alleged that the Government had failed in its duty to conduct a background check on Dylann Roof, the man who murdered nine African-Americans in Charleston, South Carolina. The plaintiffs contended that the Government's failure had allowed Roof to buy the guns used in the shooting.  

The Government contended that the FTCA's discretionary function exemption applied and, thus, that there was no liability.  That argument carried the day at the district court, and the Government relied on the same argument on appeal.  The panel was relatively conservative, so the Government should have felt pretty good about its odds.  

The Fourth Circuit's Chief Judge, Roger L. Gregory, wasn't having it.  He asked a particularly charged question, which ended with Judge Gregory calling the Government's argument "absurd."  That exhortation drew an eyebrow-raising comment from Mr. Ward, who responded, "Your Honor, I know you're not trying to humiliate me by that tone."  What followed was a well-deserved tongue lashing from Judge Gregory, ending with the command to "just answer [the] question." 

Mr. Ward's Sanders argument is a great example for us all.  It's tough to see another attorney go through something like that.  There, but for the grace of God, go I, right?  Even so, the exchange offers an important lesson.  Always keep your audience in mind.  Remember that most judges are warm, friendly people, but that every so often one will find your considered position offensive.  You've got to do your best to put these personal differences behind you.  Otherwise, your argument will end up as a footnote to the much more juicy exchange you had with the bench.  I know I remember very little about the Sanders argument, other than the attention-grabbing bit. 

May 18, 2019 in Appellate Advocacy, Appellate Practice, Moot Court, Oral Argument, Rhetoric | Permalink | Comments (0)

Saturday, April 6, 2019

Getting to "Yes": Framing Issues on Appeal

Many practitioners, it seems, view the "issues on appeal" section of their brief as a waste of space.  I don't know that for sure.  But it seems likely given the slapdash way many of those sections are composed. 

I'm going to assume everyone knows that this issue statement is no good:  Did the trial court err in awarding summary judgment?  It is my least favorite issue statement of all time.  If you find yourself writing this issue statement; stop.  It's not the answer. 

What I'm talking about are those issue statements that do a sufficient job of alerting the court to the central issue in the case, but that don't go far enough.  Here's a perfect example that I found after five minutes on the North Carolina Court of Appeals' website:

WHETHER THE FULL COMMISSION ERRED IN AWARDING ATTORNEY'S FEES PURSUANT TO N.C. GEN. STAT. § 97- 88?

There's not a lot of substance to unpack here.  I know from reading question that the appellant claims the North Carolina Industrial Commission erred when it awarded attorney's fees.  And I know the relevant statute.  In that regard, this issue statement does its job just fine. 

But it could do so much more.  First, it needs more information.  Second, it needs some emotional appeal.  Shifting gears and heading into the world of contract law, let's build an issue statement that both does its job and does it well.

Here's some background.  The plaintiff brought a breach of contract claim against the defendant, who contends that the claim is barred by a release.  The plaintiff has admitted elsewhere that the release is valid.  The trial court concluded the claim was barred and dismissed the case.  The plaintiff has appealed. 

The defendant's most basic issue statement would read something like this: 

Did the trial court correctly dismiss plaintiff's breach of contract claim?

As before, this statement tells the court what's at issue and what the defendant's position is on it.  It just doesn't do anything else.  To give the court some extra information, the defendant might consider:

Did the trial court correctly dismiss plaintiff's breach of contract claim after concluding it is barred by the release?

In this iteration, the defendant has again conveyed to the court the issue and the defendant's position on that issue.  By noting the release, the defendant also has conveyed the trial court's reasoning.  Still, this issue statement is missing something.  It tells the court what's going on, but it doesn't persuade.  It lacks emotional appeal.  For some real pizazz, the defendant might consider crafting an issue statement that goes one step farther:

Did the trial court correctly dismiss plaintiff's breach of contract claim when that claim pre-dates an admittedly valid release?

This statement goes all in.  It tells the appellate court what the trial court did, but more importantly, it tells the appellate court why the trial court was right.  That is, why the defendant should win.

The question has an important feature that its predecessors lack:  its answer is "yes."  Writing an issue statement so that it must be answered "yes" goes a long way to bolster your case.  It gets the court thinking about the facts and the law in the light most favorable to your client. And it does so early.  By writing an issue statement with a clear answer, you're ensuring that the court will see the case through your eyes early on.  That's a huge advantage, especially if you're the appellant. 

So, next time you sit down to write an issue statement, resist the urge to recycle your old standby and spend some time crafting a quality question that the court can't help but answer in your favor.

April 6, 2019 in Appellate Advocacy, Appellate Practice, Legal Writing, Rhetoric | Permalink | Comments (1)

Tuesday, March 19, 2019

The high cost of contentious litigation

Prescott Incident

As an appellate attorney, I often find myself serving as both attorney and counselor to trial lawyers. As an appellate attorney at trial, I am trying to make sure error is preserved and that we are right on the law and its presentation to the court. As a counselor, I often find myself trying to calm down the rhetoric and rancor.

While the days of "Rambo litigation" have died down a bit, there is still a strong current of thinking in the law that if you aren't being angry and contentious, you just aren't passionate enough about your case. I have always disagreed. I believe that passion is important, but that you can be passionate without being contentious, and that courtesy, instead, is actually more persuasive. Over time, that belief has proven out, as I hear from judges and justices and juries about how they perceive the bluster in a negative light. 

A few months ago, Professor Peter Huang published an article explaining a bit more about (among other things) the economic costs of lawyer hostility and unhappiness. It is an interesting read.  Here is the link to the article: https://content.sciendo.com/view/journals/bjals/7/2/article-p425.xml

While the first part of the article largely recounts Huang's (extraordinary) journey through higher education, what caught my attention was his discussion of lawyers, mindfulness, and happiness. Huang was a professor of mathematics and economics before he went to law school and became a law professor, and his insights into the profession are unique.

For instance, Huang notes studies showing that students tend to enter law school focused on intrinsic values, like the desire to do good, help the vulnerable, and improve society in general. By graduation, they have been altered, and tend to focus on extrinsic values relating to class rank, grades, honors, and salary offers. This journey leaves them scarred: one survey of law students showed that one-quarter to one-third of respondents reported frequent binge drinking or misuse of drugs, and/or mental health challenges, while another Yale survey showed that 70% of the law students surveyed suffered from some type of mental health issue.

Worse yet, when they graduate, they often see that their hostility is financially rewarded, and this behavior is reinforced. Some clients seek out "Rambo" lawyers who will be argumentative and antagonistic, thinking such attorneys are the most effective. And the rules of civil and criminal procedure often appear to incentivize and reward that mindset. Thus, Huang reasons, "An economically-minded observer might simply characterize the unhealthiness of law practice and law school as just additional costs of being a lawyer and law student, albeit emotional health, mental health and physical health costs that are hard to perhaps measure, observe, quantify, and verify."

Those costs, while difficult to measure, are simply too high. Lawyers are the most frequently depressed occupational group in the United States. To cope with that depression and anxiety, many lawyers self-medicate with alcohol or drugs. Attorney overdose and suicide rates are very high. This has not only a personal cost, but a professional one as well.

Huang leaves out another category of costs: the perception of our judges and juries. One need practice only a short time to discover that judges negatively view hostility in those who appear before them. Credibility before the court is hard to quantify, but communication theory since at least Aristotle suggests that its loss has a high (and lasting) cost in lawyer effectiveness before our increasingly frustrated courts.

But even without those costs in his calculations, Huang notes that a recent meta-synthesis of several empirical studies revealed that both clients and attorneys tend to value "soft skills" that relate to empathy and integrity more than they do "hard" expertise. Attorneys value the ability to assess deals and propose solutions, the ability to assess and mitigate risks, honoring commitments, delegation to and management of support staff, integrity and trustworthiness, keeping information confidential, punctuality, and treating others with courtesy and respect. Clients, similarly, value lawyers who accurately estimate and clearly explain attorney fees, communicate with clients, are empathetic, listen well, are responsive to clients, are respectful, have strategic problem solving skills, are trustworthy, and who understand client needs. In other words, other lawyers and clients do not value naked aggression as much as they value other skills that are incompatible with that approach.

What, then, can we draw from this? Huang and the resources he cites (as well as personal experience) indicate that the costs of hostile "Rambo" litigation are simply too high to justify any value that might be perceived to lie in such conduct. This attitude and practice does not lead to personal happiness, but rather leads to high personal costs as well as a loss of credibility with the legal community and courts. And all in the name of trying to enhance one "skill" of questionable worth, while eliminating many other soft skills that clients find truly valuable.

You can be a zealous advocate without being a jerk about it. I have always believed it's the right way to practice, and my anecdotal experience is that it is more effective. It's good to know it makes sense empirically, too.

(Image credit: Scene from a December 1883 incident in a Prescott, Arizona courtroom during the trial of Kelsey v. McAteer, source unknown (likely the local Prescott newspaper), wherein the attorneys' fight over the admissibility of an affidavit escalated into a battle with a knife and gun in the courtroom. For more information: https://www.historynet.com/disorder-in-the-court-the-lamentable-occurence.htm).

March 19, 2019 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Rhetoric | Permalink | Comments (0)

Tuesday, March 5, 2019

When the law loses its way

1024px-Trial_of_a_sow_and_pigs_at_Lavegny

There are times when we, as advocates, must argue for a change in the law. Going into the case, we know that the law, as it exists, is against our clients. Our job in those cases is to be candid and admit this, and then argue that this law must be changed. To do so, we need to examine the history and reasoning behind the law, look for allies who might have questioned it in the past, and not feel tied to earlier justifications that may have lost their appeal over time. Our job is made easier when that work reveals that the law has become unmoored from the reasons that justified its genesis.

Civil forfeiture – the idea that the state can take any item arguably involved in the commission of a crime, regardless of the fault of the owner – is one such area of the law. The Supreme Court recently ruled that state civil forfeiture awards are subject to constitutional challenge under the excessive fines clause of the Eighth Amendment. Timbs v. Indiana, No. 17-1091, 2019 WL 691578 (Feb. 20, 2019). But there is a bigger problem with civil forfeiture: it has lost its connection to historical justifications.

Justice Thomas raised this concern when he issued a statement on denial of certiorari in Leonard v. State of Texas, 137 S.Ct. 847 (2017) (mem.). After briefly analyzing the origins of the law, he concluded that “[w]hether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.”

A brief look at the historical foundations of modern civil forfeiture statutes reveals how badly they totter when asked to support the modern practice. For instance, the Bible is often cited as a source for the law, where, in Exodus 21:28, it is said that “if an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten, but the owner of the ox shall not be liable.” However, even a cursory look at this passage reveals no mandate that the state gets to eat the ox. Rather, this verse stands for the principle that if an animal causes unexpected injury, only it should bear the cost and no one should profit from the resulting death. This is also in accord with the Talmudic interpretation.

Sometimes, ancient Greek law is quoted, where inanimate things that cause death were cast out beyond the borders. Other times, ancient practices with impressive sounding names like “deodand,” “wergild,” and “bane” are cited. But in each case where early examples are found, the ancient practice is distinguishable. It was only in the English common law that something similar to our current American systems was found, and then only because the state replaced the church as the beneficiary of the proceeds of sale of an item (or ship) that caused injury, largely because it could. When we adopted that common law, this practice found its way into our legal system. The fact that Great Britain later discarded the practice when it adopted wrongful death actions providing for recovery directly to the victim’s family (at the urging of railroad companies alarmed at the potential for loss) apparently went unnoticed.

Oliver Wendell Holmes, Jr, noted that, in 1881, this was already a very common and recognizable phenomena in the development of the law:

The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.

After analyzing this growth and the history of civil forfeiture, in particular, he had this to say:

The foregoing history, apart from the purposes for which it has been given, well illustrates the paradox of form and substance in the development of law. In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view.

Oliver Wendell Holmes, Jr., The Common Law, chapter 1 (1881).

And yet, almost 100 years later, the Supreme Court cited the passage in Exodus, the law of deodand, and Holmes’ discussion of other historical antecedents in concluding that a civil forfeiture statute that permitted the forfeiture of a yacht without first proving the guilt of the owner was constitutional, largely because it was ancient. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680–686 (1974). No mention was made of Holmes’ conclusion that this historical analysis gave no real support for modern civil forfeiture.

Not surprisingly, a long catalogue of abuses followed.

In Tenaha, Texas, while Jennifer Boatright and her children rode through town on their way to buy a used car, she has stopped by the police for driving too long in the passing lane. When the police found the cash she was carrying to buy the new car, they took it. At the station, Boatright was given the option of forfeiting the cash and being released without charge, or going to jail for suspected money laundering and child endangerment, while her children were taken by CPS. She chose to keep her children.

In Emporia, Virginia, when Victor Ramos Guzman was stopped for speeding, the officers searched his vehicle and found $28,000 in cash. The driver was a Pentecostal Church secretary from El Salvador, who explained (and later proved) that he was taking the money -  donated by parishioners - to buy a parcel of land. Although no contraband was discovered, the money was seized.

In Philadelphia, a couple's home was seized after their son was arrested for making a $40 drug deal inside.

More recently, Tyson Timbs was arrested in Indiana for selling less than $400 worth of heroin. Although the maximum fine for his offense was $10,000, the police opted to seize his $42,000 Land Rover, bought with insurance proceeds from his father's death. This was the case that eventually rose to the Supreme Court.

These and other cases are often referred to as examples of “policing for profit.” The catalog of abuses is impressive, and the effect is disproportionately felt by the poor, who often cannot afford to challenge the seizures. These statutes are far removed from the original idea that no one should profit when an animal or inanimate object causes a death. And yet there are still efforts to justify these actions by referencing their ancient antecedents.

Civil forfeiture statutes are an important tool for law enforcement departments faced with sophisticated drug operations transporting drugs and laundered cash across the country. Reform efforts requiring guilt on the part of the owner and limitations on police department spending have helped rein them in. But they must also be tempered by constitutional concerns, no matter what ancient civilizations may have to say (or not say) on the subject.

Holmes’ reasoned that “[t]he history of what the law has been is necessary to the knowledge of what the law is.” This history is also important to understanding what the law should be. The historical supports given for civil forfeiture statutes do not bear the weight of many modern civil forfeiture schemes. It should not have taken us this long to figure that out, given an honest review of their history.

(Image credits: "Trial of a sow and pigs at Lavegny" from Chambers Book of Days (1864). According to the book, “Among trials of individual animals for special acts of turpitude, one of the most amusing was that of a sow and her six young ones, at Lavegny, in 1457, on a charge of their having murdered and partly eaten a child. … The sow was found guilty and condemned to death; but the pigs were acquitted on account of their youth, the bad example of their mother, and the absence of direct proof as to their having been concerned in the eating of the child.”)

March 5, 2019 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Writing, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Tuesday, February 19, 2019

Masters of Allusion

London_MMB_»2D3_Leadenhall_Market

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

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

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

Literary allusions can be very effective tools in legal writing.

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

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

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

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

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

Make sure the allusion agrees with the law.

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

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

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

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

Let the reader discover the allusion.

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

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

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

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

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

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

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

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

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

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

Sometimes allusions can draw the sting out of a rebuke

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

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

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

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

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

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

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

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

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

Saturday, February 16, 2019

Keep it Simple: Using Your Brief to Educate

Recently, Tessa wrote about useful tools for scoping out the court.  In her post, Tessa discussed resources for learning more about your audience, so you can effectively tailor your brief and argument.

In this post, I'll address some strategies for those times when learning more about your audience just isn't possible.  For instance, if you're arguing to a panel of the Fourth Circuit, you'll have no idea who's been pouring over your brilliant brief until it's show time.  Similarly, if your audience is a state supreme court, it's unlikely that any specific tidbit is going to save you.  Consider the odds.  In North Carolina, where I practice, you'd be left trying to anticipate the desires of seven justices, each with a different background.  

So what's the advocate to do?  Use your brief not only to argue but also to educate. 

Here's some background. Recently, I heard North Carolina's Senior Associate Justice, Paul Newby, speak at a CLE. Justice Newby was tasked with explaining the Supreme Court of North Carolina's mandatory appellate jurisdiction in complex business cases.

The Justice made the point that too often the nuance of a complex business case may be lost on his colleagues.  Each of them has a different background, and only one -- himself -- had a history of litigating business disputes, like shareholder derivative actions.  

The problem isn't that the justices don't approach each case carefully.  Quite the opposite.  It's that they're spending too much time trying to grasp the foundational principles, which the attorneys didn't explain sufficiently, and thus don't have enough time to digest the arguments. 

That got me thinking.  Lawyers get tunnel vision.  We know our case -- the ins, the outs, the twists, the turns.  Sometimes, we've lived with it for months or maybe even years. We've done the legal research and read all the pertinent authorities. 

Being so caught up may not be such a bad thing.  If you were involved before the appeal, you have an intimate knowledge of the case that an appellate lawyer will try her best to recreate.  But being so caught up also has its downsides. It's easy to become too comfortable with a set of facts, or with a legal principle.  

But skimping on the basics can keep your reader from buying what you're selling.  If a judge has to read your argument multiple times to get a basic grasp on the issues, you're losing ground.  The time that a judge spends re-reading your brief, pouring over the record, or, worst of all, doing background legal research is time that he or she is not spending thinking critically about your case.  Chief Justice John Roberts said as much in a 2007 interview with Brian Garner.  (Read the whole thing, but especially check page 28 of the PDF). 

So what can we do about it? Like all good legal problems, the answer depends.  The answer depends on whether the wrinkle in your case is factual or legal. 

If the complicated issue is factual, consider a tactic that a partner of mine calls "putting on the white hat." Take the opportunity to explain, as honestly as you can, not only the facts behind your case but also the context.  Why are the parties fighting? What are their motivations? 

I know, I know.  That sounds more like a mediation statement than an appellate brief.  But the reader will appreciate it. By putting the case in context, you'll have gained two advantages.  First, you will have explained the case in a way that helps the judge or her law clerk understand it. It's likely your opponent won't, which also means you'll get a chance to present your case's human factors.  And that leads to the second point. By explaining the human factors motivating your case from your client's perspective, you'll gain a subjective advantage. You'll humanize your client. 

Sometimes, putting your facts in context is as simple as an extra sentence, or an extra phrase.  For instance, if you're in an employer-union ERISA dispute, consider telling your reader what the employer does.  Likewise, consider telling your reader who the union represents.  Sure, these facts have nothing to do with the nuance of the ERISA plan in dispute, and you probably won't reference them anywhere in the brief.  But this type of stuff is important if you want your brief to do more than recite facts; it helps your brief tell a story. 

In any case, if the complicated issue is legal, then the best approach is to keep it simple.  Remember, judges are generalists. While you might live and breathe environmental or bankruptcy or intellectual property law, that doesn't mean that your judge does.  So think twice before you start using terms of art without first describing them in plain English.  Slow the pace of your brief, educate your reader, and then explain why you should win.  

I recognize that it might be frustrating to go back to basics.  But there's yet another benefit. You have the chance to teach the judge the applicable law as you see it. It's another chance for advocacy, no matter how subtle. 

To conclude, I'll leave you with this thought, which, to some extent, ties these points together.  Be creative about how you structure your brief. For instance, if you're arguing about a novel issue of statutory interpretation or a complex statutory scheme, the court will likely be less interested in the facts of your case than with an overview of the statute.  Lead with it.  Embrace it. You can take a lot of approaches when writing your brief and, fortunately, very few are wrong. But more on that in my next post. 

February 16, 2019 in Appellate Advocacy, Appellate Practice, Legal Writing, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Thursday, December 20, 2018

Thinking Thursdays: The Power of Distraction or Redirection in Persuasion

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

***

Distraction is not the first thing that comes to mind when thinking about effective persuasion. Isn’t the aim of persuasion—and advocacy more generally—to try to avoid distraction? To the contrary, Professor Melissa H. Weresh argues that distraction and redirection are persuasive techniques that advocates can use effectively to influence results. In her article, “Wait, What? Harness the Power of Distraction or Redirection in Persuasion,” recently published in Legal Communication & Rhetoric: JALWD, Professor Weresh “studies how distraction influences results and whether there is therefore a potential for the intentional use of distraction, or redirection, in advocacy.” As a baseline, Professor Weresh defines distraction, misdirection, and redirection as “deliberately redirecting the attention of the listener with persuasive intent in mind.”

Professor Weresh connects the use of redirection in advocacy to principles from storytelling and psychology. All three hinge on the innate human desire for “equilibrium, or resolving uncertainty.” When redirection techniques are used to disorient the listener and shock her out of her equilibrium, a solution can then be offered that resolves the uncertainty and allows the listener to regain her control, leading to a solution that the storyteller wanted all along.

Professor Weresh argues that advocates are already using redirection techniques, even if they are not explicitly described as such. As advocates, lawyers use redirection by making choices “as to what to reveal or emphasize” to “orient the reader’s focus or attention,” which then “redirect[s] the attention to a persuasive result.” For example, criminal defense lawyers have multiple redirection strategies at their disposal. They can use explicit misdirection to create doubt about bad facts and law by “keeping relevant material out of consideration, confusing witnesses, or redirecting the flow of the argument.” With this strategy, the lawyer tries to “undermine the plausibility of the story offered by the prosecution and therefore to interfere with the coherence of the story offered by the prosecutor.” Criminal defense lawyers can also use more implicit redirection strategies, such as using closing arguments to recast the role of the jury as the protagonist. But the use of redirection is not limited to the criminal defense context. Professor Weresh also presents other redirection strategies that can be used more generally. For example, advocates may frame or reframe an issue to invoke the decisionmaker’s fear (“the reptile strategy”). When used by plaintiffs, it “seeks to pit the [decisionmaker] against the defendants by making the [decisionmaker] feel that the defendants’ actions and products threaten themselves, their families, and their societies.”

Redirection strategies, of course, raise ethical concerns. If lawyers are expected to be truthful, then how can they engage in misdirection? There is no bright line between true and false; instead, there is a continuum—some middle ground between absolute truth and deliberate misleading or misrepresentation. Ultimately, advocates must use their own judgment when considering how they can effectively, and ethically, use redirection techniques in their practice. 

Professor Weresh’s article pushes readers to consider how redirection could supplement approaches to advocacy and, more generally, to persuasive storytelling.

Special thanks to Alison Doyle for her help with this blog post.

December 20, 2018 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing, Oral Argument, Rhetoric | Permalink | Comments (0)

Thursday, December 6, 2018

Thinking Thursdays: The Rule of Three

Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law

You may have heard repetition in writing is bad. But that’s only true for accidental repetition. In his essay, The Rule of Three, in the latest volume of Legal Communication & Rhetoric: JALWD, Professor Patrick Barry explains how legal writers can purposefully use repetition to provide rhythm to their writing. Specifically, Professor Barry focuses on the Rule of Three. The Rule of Three is a principle of writing (and speaking) that recognizes the phenomenon that information delivered in groups of three – not in twos, fours, or other groupings – is the most “comforting syntactic set.”

Just as the waltz (three beats) and the chord (three notes) have a pleasant resonance, words or phrases that come in threes have a similar effect on a reader. Famously, in his Gettysburg Address, President Lincoln emphasized that the Civil War was fought to preserve “government of the people, by the people, for the people.” If concision were Lincoln’s only aim, he might have instead said the war preserved “the people’s government.” And yet, even in his brief 272-word address, Lincoln chose to use the Rule of Three to make the point. The result is a musical phrase that has remained a memorable part of American history.

But the Rule of Three is not reserved for moments of historical importance. In fact, when you start looking for it, you’ll see the Rule of Three everywhere:

  •     In advertising – “New Year. New Adventure. New Sale.” (Southwest Airlines)
  •     In literature – “I took a deep breath and listened to the old brag of my heart. I am, I am, I am.” (Sylvia Path, The Bell Jar)
  •     And in law* – “In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” (Justice Sandra Day O’Connor, Troxel v. Granville, 530 U.S. 57, 66 (2000)).

Professor Barry offers these examples and many more. He also offers a formula of sorts for legal writers seeking to add Rule of Three rhythm to their memos and briefs: “short, short, kind of long” or “same, same, kind of different.” It’s as easy as one, two, three.

 

 

* See what I did there?

December 6, 2018 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Thursday, October 25, 2018

Thinking Thursdays: Understanding the Value of Voices Briefs in Appellate Practice

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

***

Supreme Court decisions on deeply personal constitutional issues affect far more than the parties themselves. For example, consider the far-reaching effects of the Court’s decision on marriage equality in Obergefell v. Hodges, or on reproductive rights in Whole Woman’s Health v. Hellerstedt. Voices briefs—a form of amicus brief—give non-parties an opportunity to be heard by telling the stories of individuals who are strangers to the case but “whose lives will be profoundly shaped by the Court’s decisions.”

Amicus filings have increased by “an astounding 800%” in the last fifty years. And the filing of voices briefs has also dramatically increased, especially over the last three years. In Professor Linda Edwards’s article, Telling Stories in the Supreme Court: Voices Briefs and the Role of Democracy in Constitutional Deliberation, she considers the legitimacy and value of voices briefs and concludes that “there is little to lose and much to gain when amicus filers tell their stories.”

To date, voices briefs have been used almost exclusively in abortion rights and marriage equality cases. In these cases, “(1) the outcome will have a direct personal impact on the intimate lives of those affected; and (2) the storytellers’ experience is likely outside the Justices’ experience.” Professor Edwards imagines other types of cases with similar characteristics in which advocates might use nonparty stories to help the Court understand the experiences of others. For example, voices briefs could be useful in cases involving immigration, capital defendants, convicted felons, police shootings, and issues of race, class, or power disparity.

Professor Edwards explains that voices briefs serve at least three important roles. First, they allow nonparties who will be intimately affected by the Court’s decision an opportunity to be heard. Second, even if voices briefs don’t succeed in changing the outcome of the case, they may succeed in encouraging the Court to write an opinion that both recognizes and respects opposing views. And, third, voices briefs may encourage the Court to write opinions that model “better public discourse in today’s polarized public square.” As a result, the Court’s opinions may “provide a modicum of healing because readers who lose at least will feel heard, and readers who win may come away with a greater understanding of those on the other side of the issue.”

Professor Edwards analyzes the persuasive potential of voices briefs using cognitive science research focusing on “schemas.” Schemas are “preexisting cognitive patterns providing interpretive frameworks through which we perceive and judge the world.” The perceptions that result from these schemas seem to be natural and objectively true,” as “[t]he schema both highlights information that seems consistent with the schema, and hides inconsistent information.” So, the question is not whether Justices “see the situation through a lens, but which lens focuses [their] view.” And because schemas are unconscious, Justices may “remain unconsciously captive to a set of unexamined assumptions based on preexisting narrative schema.”

Voices briefs seek to challenge the Justices’ preexisting cultural narratives by highlighting voices and stories that don’t fit neatly into their schemas. In our increasingly polarized country, the human tendency to “associate primarily with and listen primarily to those we perceive to be like us” has become amplified. Justices are not immune from this tendency. Indeed, as Professor Edwards notes, Justices have always relied on extra-judicial factual sources and their own preexisting cultural knowledge and personal experiences to inform their decision-making.

Voices briefs thus serve an important role—they help counteract the Justices’ preexisting cultural narratives by exposing them to diverse perspectives that “help to fill the inevitable gap between a Justice’s personal experience and the realities of other lives and perspectives.” Studies have shown that anecdotal messages like the ones communicated in voices briefs may actually be more effective at countering negative preexisting bias than the logical arguments in merits briefs. Professor Edwards concludes that, instead of adding bias to a neutral process, “voices briefs may be the only way to counter the preexisting values bias that accompanies human deliberation.”

Professor Edwards discusses concerns about reliability, relevance, and the risk that non-party stories will be used impermissibly as adjudicative facts, rather than as permissible legislative facts. Professor Edwards concludes that “preserving a role for voices briefs is preferable to limiting their use in ways that ignore modern cognitive science and ancient rhetorical principles, that silence the voices of the governed, or that secretly smuggle in the adoption of a limiting jurisprudential view.”

I encourage appellate practitioners to read Professor Edwards’s article and to think about ways in which you might incorporate voices briefs into your appellate practice when faced with deeply personal constitutional issues that may be out of the realm of the Justices’ own personal experiences.

Special thanks to Alison Doyle for her help with this blog post.

October 25, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Rhetoric, Sports, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, October 11, 2018

Thinking Thursdays: Speak onto the Page

Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law

Thinking Thursdays: Speak onto the Page

The ideal advocate is both a skilled writer and a skilled speaker. Regardless of practice area, the law is a profession of words, and lawyers must be able to effectively communicate those words whether called upon to do so in a brief, in a contract, at oral argument, or when counseling a client. Yet, many lawyers experience a certain lopsidedness in their communication skills. Some of us are more confident writers than we are speakers (this blog author included!). Others are at our most articulate when speaking rather than writing.

Professor Peter Elbow, a Professor of English Emeritus at the University of Massachusetts Amherst, has written a book called Vernacular Eloquence: What Speech Can Bring to Writing that will appeal to lawyers of both stripes. Professor Elbow’s book sets out to be both theoretical and practical. Harnessing his frustrations about the “snobbery” of the culture of “correct writing” that he posits stifles and excludes many demographics of potentially good writers, Professor Elbow states that the theoretical goal of his book is to prove that “everyone with a native language has what it takes to write well.” Along those lines, the central argument of his book is that “we can enlist the language activity that most people find easiest, speaking, for the language activity most people find hardest, writing.”  

In addition to supporting his theoretical claim by marshaling a breadth of scholarship on writing and literacy, Professor Elbow offers practical suggestions for readers looking to improve their writing. The book suggests two major concrete ways to enlist speech for writing: (1) “talking onto the page” at the early stages of writing and (2) reading aloud to revise at the late stages.

Legal writing has long been criticized for being needlessly opaque. Typical speech, however, is rarely so incoherent. Most writing teachers, when faced with a confusing passage in a student work, will ask, “What did you mean here?” Usually, the student can speak a much clearer explanation of the passage than the passage itself. Professor Elbow says of this paradox, “the incoherence that comes from nonplanning is minor compared to the incoherence that comes from careful planning – unless it’s quite skilled.” In other words, while unplanned conversational speech may contain false starts, hesitations, and digressions, those aspects of speech do not interfere with the listener’s understanding nearly as much as certain aspects of planned typical writing can interfere. 

Professor Elbow, however, is careful to qualify his practical advice. He recognizes that professional writing quires a final draft in “correct English.” But he proposes that until that final draft, writers should “speak onto the page” and ignore internal voices that nag and criticize when that speech doesn’t produce polished results.

In the end, as one reviewer noted, “[Professor] Elbow is his own best argument for speaking onto the page: His voice is both authoritative and affable, conversational and professorial.” Lawyers looking to silence their inner critics would benefit from “listening” to Professor Elbow’s book.  

October 11, 2018 in Appellate Advocacy, Books, Legal Writing, Rhetoric | Permalink | Comments (0)

Thursday, August 16, 2018

Thinking Thursdays: Building a Dialogue Between Scholars and Practitioners

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

This is my last post for at least a long while—I will be on sabbatical this semester. What does someone invested in the field of legal writing do for sabbatical? She works to build the discipline. In my case, it’s researching and writing a topic that I hope will be of interest to members of the practicing bar as well as other scholars in the field.

Legal writing is a misnamed field. Scholars and teachers focus less on the mechanics of writing than they do on rhetorical analysis, and the nature of communication as part of client representation. A modern legal writing professor cares less about the sections of a memo than she does about the science of persuasion and the implications for legal advocacy. In this pursuit, the scholar connects with the practitioner. Many, many articles are written for a practitioner audience. I have had the joy of talking about several in this blog, and the bloggers who are taking over after this will be doing the same.

At a recent national conference, a group of legal writing “discipline-builders” sat around and talked about the landscape and trajectory of scholarship. We created a word cloud to capture the dialogue already out there—most of it created in the last twenty years. Here’s what it looks like:

DBWG#3 Wordle shown at 2018 biennial conferenceAs you can see, the conversations is rich, and varied. It's not your Mom's legal writing course anymore. Rather, the dialogue is dynamic and deep. This is an exciting time for scholarship in the discipline. I hope that you will join the conversation. And, thank you for reading these blogs.

August 16, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (1)

Thursday, August 2, 2018

Thinking Thursdays: Story Believability

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

Dr. J. Christopher Rideout, at Seattle School of Law wants lawyers to appreciate the elements of narrative plausibility (colloquially: story believability). The believability quotient is affected by whether the proffered story’s structure bears up in its consistency and completeness, and whether the story's substance jibes with the audience's experiences and lessons learned from those experiences. In his Journal of Legal Writing article Storytelling, Narrative Rationality, and Legal Persuasion, Rideout explains that his understanding of what persuades in law has shifted from one grounded primarily in rhetorical models of persuasion to now include narrative models as well.

To be persuasive, a narrative must possess narrative probability and narrative fidelity. Narrative probability is formalistic, in that it is structural. It involves two elements: coherence and correspondence. Narrative fidelity, in contrast, is substantive, focusing on the content. The bulk of rhetorician’s work on the persuasive structure of narratives has focused on the structural features. The way in which a story is told influences its credibility. “regardless of the actual truth status of the story.”[1]

Narrative coherence refers to the way the parts of the story fits together. The story structure should have a cause and effect flow. Having that cause and effect flow makes a story feel feasible—thus, the story that is presented most coherently will be the story that feels the most probable. To be coherent, a story must also be complete—that it contains all of the expected parts of a story. While the audience may be able to fill in some of the elements with inferences, a story that is too incomplete will appear to have logical gaps.

Narrative correspondence. the second formal (structural) requirement, lines up what the audience believes typically happens in the world. As story consumers we are always comparing the story being told with how we have experienced our world’s physical properties or within the audience’s mental storehouse of social knowledge. A story that contradicts the audience’s understandings of how things work will lack plausibility. While the story need not conform precisely to the most-common-flow in a given situation, it must be congruent to how humans react in given situations.

Dr. Rideout spends the second half of the article working through his suggestion that when competing legal narratives have equally compelling story probability, the substantive concept of narrative fidelity may tip the persuasion scales. Narrative fidelity may feel like narrative correspondence but is not structural in nature. The story must present good reasons for belief or action. It must fit with the social norms of the setting and moment in time. Fidelity goes beyond formal inferences to include what one rhetorician terms “communal validity.”[2] The story should have a “tug” to it because it appeals to our lived experiences and the values derived therefrom. Stories that win, do so for the logical construct but also for the substantive fit.   

 

[1] W. Lance Bennett & Martha S. Feldman, Reconstructing Reality in the Courtroom: Justice and Judgement in American Culture, 89 (Rutgers Univ. Press 1981).

[2] Robert Burns, A Theory of the Trial, 217 (Princeton Univ. Press 1999).

August 2, 2018 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (0)

Thursday, July 19, 2018

Thinking Thursdays: The hero of hyphens

 

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

******************

Dr. Joan Magat, a law professor at Duke, wants you to know that hyphens matter, and they are too often underused. For years she has tried to convince the editors at Legal Communication & Rhetoric: JALWD that the phrase should be “legal-writing document” rather than “legal writing document.” And that lawyers who work with clients who have been charged with crimes are “criminal-defense attorneys,” rather than “criminal defense attorneys.” The latter isn’t distinguishable from someone trying to describe one of those specialists who themself was convicted of a crime. That lawyer would be a “criminal defense attorney.” See the problem?  Although she often finds herself on the losing side of these battles, Joan Magat isn’t wrong.

Her 2014 article, Hawing Hyphens in Compound Modifiers explains as it proves her point. Although she thanked and dedicated the article to her fellow-editor colleagues, its brevity and clarity offers an argument for all lawyers.

The base rule is easy to remember: compound adjectival-modifiers preceding a noun should be hyphenated. It easy to apply it consistently. Exception exist for phrases in italics, quotes, and proper nouns.  Yet, to Professor Magat’s woe, too often writers omit the hyphen, mimicking some of the familiar-but-unhyphenated phrases like “high school student” or “sales tax increase.” She rejects the entries in The New York Times Manual on Style and U.S. Government Printing Office’s Manual of Style, both of which advise against hyphens when the meaning is clear without them. It is up to the writer to determine what might be clear or unclear to the reader. The MLA Style Manual, in contrast, takes the opposite approach and instead requires hyphens to prevent a misreading. Only commonly unhyphenated phrases are excepted. There is much less guesswork involved.

Dr. Magat parses “pointless” from “helpful,” and shrugs off the critique that unexpected hyphens will distract readers. She pushes back, saying that hyphens are unlike scare quotes, exclamation points, or em-dashes used to excess. Rather, the hyphen smooths the way for readers because at times it can become difficult to tell what’s the noun and what’s the modifier. Think about the phrase “common law practice” for a moment. What is that? It could be one of two things. A hyphen could clear it up.

The article ends with a lovely appendix, providing advice about hyphenating compound modifiers. For that alone, the article is worth the thirty-second download time.

July 19, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (0)

Thursday, July 5, 2018

Thinking Thursdays: Consider your reader's working-memory limits

Ruth Anne Robbins, Distinguished Clinical Professor, Rutgers Law School

*********************************

Professor Andrew Carter has used a juggling metaphor to caution his students about exceeding a reader’s working-memory limitations. A sentence and paragraph need to stay within the boundaries of what a reader can competently hold in her working memory if the writer wants that reader to thoroughly comprehend and maintain the writer’s ideas. His article on the topic provides lawyers with useful information why our writing needs revisions for clarity and, yes, brevity.

Working memory is more than pass-through storage for new information. It is also where we interpret that information and use it to complete tasks. A simple arithmetic problem can be solved in our heads thanks to working memory, because it is there that we are both storing information (the numbers) and processing that information (performing the arithmetic function). At some point, Professor Carter points out, arithmetic becomes too difficult if there are too many numbers to store and manipulate. While we might be able to add numbers in the 100’s, we may need to turn to writing instruments to solve addition or subtraction problems that involve numbers in the thousands or ten-thousands.

Working memory has three different components to it: the first part stores the new information and the second part rehearses it on a loop to avoid forgetting. Third, the central executive component coordinates the information and controls the processing.  

Written text likewise engages working memory. But, a reader can process only a limited number of concepts in a single sentence or paragraph before overwhelming the limited capacity of working memory’s ability to store, rehearse, and process information. In the central executive aspect, the reader completes two tasks: discerning the text’s meaning and putting the text into context by mediating interactions with information housed in long-term memory. Thus, says Professor Carter, legal writers need to be cautious about how much information they ask the reader to juggle.

Professor Carter thus offers two sage pieces of advice. First, promote automatic processing. That means keeping the information simplified and free from disruptions. Long sentences with extraneous information, ornate syntax or obscure phrases all inhibit the automatic processing of information. So too will stumbling blocks in the way of grammatical, word-choice, or punctuation errors. Second, manage the cognitive load visually by chunking sentences and paragraphs so the interactivity of ideas is obvious rather than difficult to sus out. Causal ideas (if/then) in sentences and paragraphs should be clear to the reader via small-group chunks that are more automatically processed because they contain recognizable flow.

Naturally, legal readers carry a duty to read and digest the legal writing of an attorney. But, it bears repeating that a piece of writing’s efficacy will turn in part on its readability. Sometimes, keeping it simple is the strategic choice.

July 5, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Thursday, May 24, 2018

Thinking Thursdays: What's in a parenthetical?

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

Parentheticals. We love them, but we don’t always understand how to use them. An empirical study and article by Professor Michael Murray compiling the most-often use of these legal-writing creatures, demonstrates that most of the time they are used either incorrectly or inefficiently. Parentheticals are best employed to illustrate the governing rule of law by pointing to key facts from precedential narratives. Or, to embed a pithy quote that likewise illustrates a point.

Parentheticals are typically used when an illustration can be easily reduced to a comprehensible present-participle phrase. Experts also consider relevance in the equation. Sometimes the efficiencies suggest the use of a parenthetical to save space, i.e. when the precedential case isn’t important enough to elevate to an in-text explanation. A parenthetical can also be used to make a point about a rule being used in a series of precedential cases. That is, the parentheticals can then form visual support for synthesis such as, “the five cases that analyzed this point all interpreted the term broadly.” Five cites with parentheticals would then follow.

However, the substance inside parentheticals are sometimes visually difficult to locate, coming at the end of a citation sentence. If a case is more relevant to the client’s outcome, a better choice may be using one or two sentences of in-text explanation in lieu of the parenthetical. 

Michael Smith, at Wyoming College of Law is *the* expert on this topic, and his Advanced Legal Writing textbook’s Chapter 3 has been termed by 15 years of upper-division law students as “mandatory reading for any to-be lawyer or lawyer.”[1]  In the chapter he categorizes types of narration one might do in a parenthetical:

  • Illustrate for elucidation (using a parenthetical to illustrate how a rule operated in a precedential case).
  • Illustrate for elimination (using a parenthetical to eliminate possible misinterpretations of general rules).
  • Illustrate for affiliation (using a parenthetical to tie a rule to something in the everyday knowledge of the reader—a reference to a cultural icon, publication, or phenomenon).
  • Illustrate for accentuation (using a parenthetical to demonstrate how one word in the rule that might otherwise be overlooked is actually the key to solving ambiguities).

In my own textbook, written with Steve Johansen and with Professor Smith’s colleague Ken Chestek, we expand slightly on Professor Smith’s categories, by talking about one-word or one-phrase uses of parentheticals.[2] That is used in situations where a single word or phrase can conjure a story-scene for the reader and make the elucidation point. By way of quick example, “New Jersey considers the smallest of offensive touches ‘bodily injury’ in its criminal caselaw. [case cite] (slap); [case cite] (shove); [case cite] (kick); [case cite] (pinch).” We also talk about times when you can use quotations effectively in parentheticals: when it’s unique language that succinctly illustrates the rule. “wall of separation” is a good example of this.

Professor Smith also includes cautions for the use of parentheticals, and it is here that the numbers crunched by Professor Murray in his article make clear what is going wrong in the majority of appellate briefs. The number one and number two issues that Professor Smith sees in the drafting of parenthetical substance? Exactly what Professor Murray sees the most in his data. The error of placing the rule in the parenthetical. Or, the error of restating the rule in the parenthetical. That is, quoting the rule the attorney just synthesized into a client-oriented rule statement—or should have just synthesized that way. Restating the rule is simply a crutch for the writer—as if to say, “I really did read the case!” Restating the rule also ruins the cause-to-effect narrative flow of the rule illustration/rule explanation part of legal analysis.

Other common errors include being too overbroad in the factual illustration or being too specific. The right height to look down on the case and describe facts for parenthetical purposes is something like 30 feet from the ground. What can you see of a precedent’s story from that height? Not every blade of grass, but maybe a person’s front yard.

What is the takeaway? Parentheticals are an important tool in the lawyer’s kit, when used to promote persuasion and efficiency. They can, however, be cluttering and in some cases can add bulk if they are merely repetitive. Use them well—and use them wisely.

 

[1] You can preview part of Professor Smith’s Chapter 3 via Google Books. Search string: “Michael R. Smith” & parentheticals

[2] Do not pay the list price for a new book. The second edition is coming out this fall and will make this first edition a heck of a lot cheaper. 

May 24, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (2)

Thursday, May 10, 2018

Thinking Thursdays: Two-spacers, please stop being so selfish

 

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

The big news this week in field of law and typography[1] was a Washington Post story about a study that purports to settle the one versus two-space controversy that rages on appellate-minded websites, listservs, Facebook pages, and Twitter accounts. Even on this Appellate Advocacy Blog, editor Tessa Dysart chimed in earlier this week. For those of you who are two-space fanatics, I am going to do more than repeat what you may have already heard, i.e. that the study is deeply flawed (although I will quickly review it). Mostly, I am going to suggest that you reflect on your dry, compassionate-less soul and then put down your personal preferences to instead be a citizen of the world.

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But before I continue along these lines, I want to reiterate the scientific flaws in the study that have been ably and articulately pointed out by the best typographer and design expert in law—Matthew Butterick. I have had the pleasure of presenting with LWI Golden Pen recipient Matthew Butterick, and I know that when he writes something, he’s carefully researched and analyzed it first. Right away, Butterick calls attention to the central flaw of the study. It was done using the monospaced (typewriter-like) typeface of Courier, which is still required by the upper courts of New Jersey. To try and shake loose the New Jersey committee overseeing court rule changes, I researched the educational and cognitive science of readability and in 2004 published Painting with Print: Incorporating Concepts and Layout Design into the Text of Legal Writing Documents. The New Jersey officials were not persuaded but other courts were, and the article appeared by invitation on the 7th Circuit’s website for twelve years.

Because it is a monospaced typeface, two spaces must appear at the end of each sentence. Otherwise it is too difficult to determine whether there has actually been a break in the prose. But people don’t use typewriter fonts when they have the choice to use a proportionally spaced one such as the one you are reading right now. And there’s a reason for that. Courier, and typefaces like it, are 4.7% more difficult to read than proportionally spaced type. That equals a slowdown of fifteen words per minute, which Dr. Miles Tinker, the lead psychologist who studied the issue deemed “significant.” In his studies, readers consistently ranked proportionally spaced typefaces ahead of monospaced ones.[2] In other words, the new study is flawed both in using a typeface that people don’t normally choose, and in using a typeface that essentially requires two spaces to be able to discern the difference between the end of a sentence or not. The people conducting the study put the cart before the horse. That’s just poor science.

Now, I promised you a lambasting, and here it is. Two spaces after periods take up more space and for lawyers who find themselves up against a page limit, or who wonder why paper is so expensive, think about whether you can save yourself some space and money by switching over to one space instead.[3] You can also cut down on use of one of the most noxious and wasteful products we use: paper. In this country, paper is the largest source Eagle_Paper_and_Flouring_Mill_Kaukauna edited of municipal waste, and paper creation is the fourth worst industry for the environment. I wrote about this too, in a follow-up article, Conserving the Canvas: Reducing the Environmental Footprint of Legal Briefs by Re-imagining Court Rules and Document Design Strategies. Two spaces after periods actually contribute to the polluting of the environment. Yes, that extra space really does cost something to use.

And, if you are in the Seventh Circuit, you don’t even have a choice. The judges care a great deal about typography and instruct lawyers to use only one space after periods.

Al Gore thumbs up editedSo, there you have it, two-spacers. An inconvenient truth. There’s logos, pathos, and ethos to using only one space. Your preference harms the Earth, eats into your page limits, and costs you and your clients more money to use. The so-called study is junk science. Are there really any justifiable reasons left to continue your inconsiderate punctuation practices?

 

 

 

[1] Sure, that’s a thing, per Derek Kiernan-Johnson

[2] Miles A. Tinker, Legibility of Print 47–48 (Iowa State U. Press 1964) (synthesizing several decades of psychological research on typeface and readability).

[3] There are also other ways to save yourself some money and ecological ruin. When rules don’t require double-spacing: don’t. It’s harder to read anyway. And when courts allow you to use double-sided printing, do so.

May 10, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)

Thursday, March 29, 2018

Thinking Thursdays: Know your Logical Fallacies (Part 2)

In my last Thinking Thursday, I discussed some common logical fallacies that lawyers may fall prey to. Specifically, I focused on non-sequitur fallacies and insufficient evidence fallacies. Based on responses to my previous blog entry, I am going to review one category in this piece, and one more in the next entry.

Today I am focusing on shallow thinking fallacies. [1]

By way of quick review, logical fallacies happen when something goes wrong with the legal syllogism. Here is a proper albeit simplistic legal syllogism:

            Major premise:           The speed limit where defendant was arrested is 45 MPH.

             Minor Premise:          The working-perfectly radar gun clocked defendant at 63 MPH.

            Conclusion:                    Defendant was speeding

In shallow thinking fallacies, the advocate begins with a faulty major premise. The claimed “rule” is not a rule at all or is poorly articulated. Below are four shallow thinking fallacies.

Logic 2

1. You can spot a false dichotomy fallacy when you are presented only two choices to a complex issue that in fact offer multiple choices. For example, “If you don’t like chocolate, you must like vanilla.” Or, “you are either a Star Trek or a Star Wars person.”

Here’s how the syllogism goes wrong:

The False Dichotomy

Major Premise

Minor Premise

Conclusion

People can either like Star Wars or Star Trek, but cannot like both

You like Star Trek

You do not like Star Wars

False

True

Logical but incorrect

Some legal maxims are actually examples of this fallacy, including one of the trial lawyer’s favorites: falsus in uno, falsus in omnibus (if a witness lies about one thing, he is lying about everything).

2.Next is the bandwagon fallacy, or what I like to call “teenager logic,” It goes like this, “everybody agrees with this premise.” The obvious implication—so if everyone agrees, it must be correct. The internet is full of the faceless, nameless, “everyone says so” comments, sometimes supposedly supported by unscientific or undocumented polls. Lawyers might see this argument appear in the guise of an uncited “weight of authority” type of argument: “Most other jurisdictions do it this way!” Or, “This is a well-settled rule of law, dating back to antiquity.” [no or very few citations]. This one is a fallacy mostly because the major premise (“everybody agrees”) is not supported by sufficient authority. The premise might be true, but the skeptical reader will likely see this sort of argument as a cover-up for a weak or non-existent rule. A string citation can help overcome a bandwagon fallacy—one of the few times a string citation is actually useful: To show the weight of authority.

3.The third shallow thinking fallacy, the middle ground fallacy, is also known as the King Solomon Solution. This fallacy assumes that when two parties begin from distant or opposite positions, the position squarely in the middle of those two positions is the optimal solution. This kind of fallacy relies on the predilection of humans to rely on opening anchors for negotiation points--if the opening anchor is unrealistic, the rest of the negotiation can become fallacious. You can read more about this on the website of the Harvard Program on Negotiations.

Once again, this major premise contains fundamental flaws—in this case, the flaw in thinking that both positions are equally valid. They might not be. The problem, of course, is that the solution disregards the possibility that one position is objectively reasonable (or legally sound) and the other is grossly unreasonable (or legally unsound). While our legal system encourages and values compromise, when faced with this particular fallacy compromise leads to unreasonable or legally unsound results.

The Middle Ground Fallacy

Major Premise

Minor Premise

Conclusion

The best resolution of any valuation issue is the average of the two expert opinions

Plaintiff’s expert values the property at $500,000, but Defendant’s expert values it at $150,000

The property is worth $325,000

False

True

Logical but unsupported

4. Related to this, the fallacy of false balances also starts with a fundamental flaw in the major premise. Not all sides of an issue deserve equal weight in every situation. Sometimes one side of a debate has little or no weight at all, and therefore deserves little or no role in the debate. Journalists are often accused of allowing air time to fallacious debates even though one side is without merit.

In practice, this fallacy commonly appears in debates that involve proven science. The scientific method involves repeat experiments by different groups of scientists to verify stated conclusions. Once that has happened and conclusions have been accepted by a majority of scientists in the field, it is a logical fallacy to say that a dissenting view is equally balanced to the proved science. Allowing a debate about whether the moon revolves around the earth or vice versa would fall into this category of fallacies. As with the Fallacy of False Equivalency, lawyers can fall prey to this type of fallacy because we are taught to problem-solve through negotiation and compromise.

The False Balance Fallacy

Major Premise

Minor Premise

Conclusion

The Earth might be flat or round

I believe the Earth is flat

The Earth is flat

False

True (he “believes”)

Logical but False

Keep an eye out in your writing and in your colleagues’ to help correct any of these you spot in their analysis.

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

[1] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).

March 29, 2018 in Appellate Advocacy, Appellate Practice, Arbitration, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (0)

Thursday, March 15, 2018

Thinking Thursdays: Know your logical fallacies (Part 1)

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

Faulty reasoning undermines the substances of a legal argument as well as the credibility of the advocate. After a quick search of the online briefs available on Westlaw and Lexis, I can safely tell you that several thousand appellate briefs reference logical fallacies—typically as a precursor to a direct refutation of an opposing party’s argument. How many of us these days know our logical fallacies as well as we should?

Beyond calling out opposing counsel for these errors, the wise attorney also tests their own writing to see if they have relied on fallacious thinking. In most logical fallacies, something has gone wrong with the legal syllogism. In a sense, the major premise of a syllogism is a rule, while the minor premise is a fact. The conclusion flows from the application of the rule to the fact. Here is a simple example.[1]

            Major premise:          The speed limit where defendant was arrested is 45 MPH.

            Minor Premise:          The working-perfectly radar gun clocked defendant at 63 MPH.

            Conclusion:                Defendant was speeding

In most logical fallacies, some part of the syllogism fails. There are four major categories of logical fallacies in law. Today’s blog entry goes through the first two groups of common fallacies: the non-sequitur fallacies and the insufficient evidence fallacies. The next Thinking Thursday blog entry will discuss two other categories: shallow thinking and avoidance fallacies.  

Logic 21. Non-sequitur fallacies. In a non-sequitur, the major premise is applied incorrectly to the minor premise. You can recognize these when the conclusion does not logically flow from the premise

1.1  The correlation equals causation fallacy commonly appears with statistical analyses. The arguer claims that because A and B appear together A must have caused B. The argument that the MMR vaccine causes babies to develop autism is a classic example of this type of fallacy. This amusing site shows these fallacies taken to the extreme.

1.2  The post hoc fallacy is closely related to the correlation/causation fallacy. The arguer claims that because A occurrence is followed by B occurrence, A’s occurrence must have caused B to occur. For example, after I ate an apple, I won an award—ergo, eating the apple caused me to win the award. In law, this sometimes shows up this way: When Pat drinks, Pat becomes violent. Therefore, Pat’s violence is caused by alcohol. That is a logical fallacy. Alcohol may lower inhibitions but does not cause violence by itself. 

2. Insufficient evidence fallacies contain faulty minor premises—faulty because they are false or based in inadequate material. There are three major types of these.

2.1  The hasty generalization fallacy happens when lawyers draw big and general conclusions from too small a sample size or from unrelated evidence. “Climate change has been solved because this winter New Jersey saw frigid temperatures in late December and early January, and because it saw two nor’easter storms in March.” In that example, the weather from one three-month period is being used to argue that a decades-old phenomenon is over or never existed. To show this syllogistically:   

Major premise: Climate change is making things warmer

Minor premise (flawed): weather over a three-month period matters to climate change

Conclusion (faulty): Climate change is over or solved.

2.2  The anecdotal evidence fallacy is related to the hasty generalization fallacy. The anecdotal evidence fallacy occurs when there is simply inadequate evidence to support the minor premise.

Major premise:  Some cities offer Segway tours of tourist areas.

Minor premise (flawed): I have never seen people on a Segway tour of Philadelphia.

Conclusion (faulty): Philadelphia does not have Segway tours.

2.3  Finally, shallow legal research can lead to the Texas sharpshooter fallacy. As a classic example, a person shoots an arrow at a barn wall, and then draws a bullseye around the arrow in the wall. That’s a logical fallacy and happens in the minor premise—i.e. “this is a target with a bullseye.” A Texas sharpshooter fallacy happens when someone builds legal analysis and argumentation around incomplete legal research. Think of this fallacy as related to a confirmation bias—when the legal researcher stops researching when they find a result that demonstrates the governing rule that they want for their client, versus what the rule might actually be.

**********

It is easy enough these days to practice spotting logical fallacies simply by watching television. Many advertisements use fallacious reasoning in the marketing. Politicians will sometimes fall into the logical fallacy trap as well—watching the news for a week or two should net you a few examples. But, most importantly, review your own advocacy for these common errors.

] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).

March 15, 2018 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (1)

Thursday, February 15, 2018

Thinking Thursday: Lincoln would have owned Twitter

Presidents’ Weekend is upon us. Ten score and nine years ago, one of our most eloquent American writers was born. Per Professor Julie Oseid, it’s hard to pin down President Lincoln’s prowess to just one attribute. He was adept at many skills, “including alliteration, rhyme, contrast, balance, and metaphor.” (From her new book, Communicators-in-Chief) In her chapter on Lincoln, however, Oseid focuses on his ability to express a great deal in an economy of words. He developed that style during his 25 years as a trial attorney riding circuit. Collecting his legal writing became a quest for historians, and as a result Lincoln is now the most documented lawyer that we may ever have. You can see some of the work of The Lincoln Legal Papers project online. Oseid summarizes Lincoln’s strategy as not to waste arguments or words, but to use “just the necessary number of those words for essential matters.”

So many of our presidents are known for their rhetorical style that Oseid is able to build a body of work about the takeaways that we, as legal writers, can learn from our bygone leaders. Essays have appeared in Volumes 6, 7, 8, 9, and 10 of Legal Communication & Rhetoric: JALWD. Her new book brings together the rhetorical lessons from these five presidents and does so in a way that is very readable in the gestalt.

Lincoln with pen and paper

Lincoln worked hard for his brevity, pondering and editing mercilessly. He was driven by a need for universal comprehension—something every trial lawyer learns to do. His famous second inaugural address was delivered in six minutes. In 701 words he developed a timeless message of reconciliation—and 505 of the words he used were only one syllable long. His notes of his speech showed emphasis on five words, all verbs.

I asked Professor Oseid, and she agreed that Lincoln would have used Twitter masterfully and eloquently. It is interesting to pause for a few minutes and wonder how he would have used the medium. From what we know of his other writings, I strongly believe that he would have lifted it up, and us up in the process. Lincoln keenly understood that intelligent and powerful communications do not depend on vocabulary, but on conveying a theme with precision and organization.

As I celebrate my favorite presidents this weekend, I will be thinking about those legal writing lessons I can learn from them.

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

February 15, 2018 in Appellate Advocacy, Appellate Practice, Books, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (0)