Appellate Advocacy Blog

The Power of The Rule of Three

Law professors, lawyers, and judges have spent countless hours, whether in law review articles, textbooks, at conferences, or in continuing legal education sessions, providing advice regarding legal writing skills, legal analysis, brief-writing, and persuasive advocacy.

Yet, despite this helpful and practical guidance, law students often struggle to develop effective persuasive writing skills. Law graduates – and seasoned lawyers – frequently face criticism of their writing skills, and judges often lament the less-than-persuasive nature of many pleadings, motions, and briefs. And for good reason. Many trial and appellate briefs, for example, lack a cohesive structure, fail to tell a compelling story, lack precision and concision, violate grammatical rules, contain unnecessary repetition and information, and simply fail to convince the reader to rule in favor of the drafter’s argument.

Having said that, for law students and lawyers who seek to immediately and significantly improve the persuasive value of their briefs, there is one strategy that you should adopt from this day forward: The Rule of Three.

The Rule of Three is simple yet incredibly effective. In the Introduction (or Summary of Argument) section of your brief – and throughout your brief -- identify three specific reasons (and only three reasons) supporting the relief or outcome you seek. And state these reasons with specificity, clarity, and conciseness using First…Second…Third…

Here is an example:

***

Defendant – a well-known tabloid that lacks journalistic integrity – defamed the plaintiff when defendant published an article – to an audience of over one million readers – stating that the plaintiff “was a pathetic attorney who didn’t know the law, preyed on the vulnerabilities of unsuspecting clients, stole their money, engaged in unlawful hiring practices, and repeatedly made inappropriate advances to several clients.”

The defendant’s comments were defamatory for three reasons.  First, the defamatory statements are false. Second, the defamatory statements damaged severely the plaintiff’s reputation and standing in the legal community. Third, the defamatory statements caused the plaintiff to suffer substantial, ongoing, and irreversible, harm.

***

After stating the three reasons supporting the remedy you seek, you should dedicate the next three paragraphs (in the Introduction or Summary of Argument) to relying on the relevant facts or evidence that support each reason. Thus, for example, you should draft one paragraph explaining why the statements were false. Then, you should draft a second paragraph explaining why the statements damaged the plaintiff’s reputation and standing in the legal community. Thereafter, you should draft a paragraph explaining why the plaintiff suffered reputational and economic harm. After that, draft a one-sentence conclusion stating “For these reasons, the defendant’s article was defamatory and thus entitles the plaintiff to damages.” Done.

Also, make sure that your point headings track the three reasons you identify at the outset of your brief. Doing so ensures that your brief will be cohesive, well-organized, and easy to read.

Why is the Rule of Three so effective?

1.    The Rule of Three simplifies your arguments

Judges are very busy. They want to know – quickly – what you want and why you should get it. Briefs that confuse judges or make judges struggle to discern your legal arguments damage your credibility and reduce the persuasive value of your brief.

The Rule of Three avoids this problem. It makes it easy for judges to identify your arguments and evaluate the evidence in support of those arguments. As such, the judge will like you for making his or her job easier. The judge will view you as a credible attorney and give you the benefit of the doubt throughout the litigation. And, ultimately, your client will thank you when you win the case.

2.    The Rule of Three organizes your arguments

The worst briefs are often those that go on…and on…and on…

The worst briefs read like a rambling manifesto that contains a barrage of loosely related thoughts that are jammed into long paragraphs with no separation of the concepts, arguments, or allegations. In short, it is chaos. It is easier to navigate one’s way out of a forest or maze than it is to navigate the arguments that such briefs present.  

The Rule of Three eliminates this problem. It’s quite simple. Say, “First…” and state your argument. Say, “Second…” and state your argument. Say, “Third…” and state your argument. Then, in the next three paragraphs, explain each argument in a separate paragraph – and include each argument as a point heading. Doing so ensures that your arguments will be organized and presented clearly, understandably, and effectively.   

3.    The Rule of Three appeals to the audience’s cognition and psychology

Let’s face it: listening is hard. Paying attention for a prolonged period is difficult. Remembering what we have heard is often challenging. So how do you draft a brief or make an oral argument that will maintain the audience’s attention and convince the audience to adopt your position?

Studies in social and cognitive psychology demonstrate that people respond positively and attentively to arguments that are delivered in sets of three.

The rule of three is ubiquitous. Humans are both neurologically and culturally adapted to the number three and its combination of brevity and rhythm. We know from studies in neuroscience that our brains seek out patterns and finds the structure of three to be a complete set; it feels whole. Three is the least number of items in a series that make a pattern, and once you start looking for this pattern, you’ll see that it’s everywhere.  In mathematics it’s a rule that allows you to solve problems based on proportions. In science there are three states of matter: solid, liquid, and gas. The Latin maxim omne trium perfectum (everything that comes in threes is perfection) echoes Aristotle and his Ars Rhetorica. There Aristotle posits that the most persuasive rhetorical appeals must rely on ethos, pathos, and logos. Extrapolate from that, and even simple storytelling and narratives have a simple structure of a beginning, a middle and an end.[1]

Simply put, the Rule of Three embeds a cohesive structure into your arguments that enhance their readability, appeal, and persuasive value.

Ultimately, the Rule of Three reflects the principle that legal communication (and communication generally) is less complex than you think. It’s about common sense. Use the Rule of Three in your briefs and oral arguments. It’s that simple – and very effective.

Below are a few videos regarding the Rule of Three.

(1) The Rule of Three: a top speechwriter explains... - YouTube

The Rule of Three - A Law of Effective Communication - YouTube

(1) Steve Jobs: 3 Lessons From The Keynote Master - YouTube

 

[1] Brad Holst, Want Your Presentation to Be Memorable? Follow the Rule of Three, available at: Want Your Presentation to Be Memorable? Follow the Rule of Three (mandel.com)

Book Review - Classical English Style

 

Classical English Style, by Ward Farnsworth, is another must-have for the library of an appellate advocate. Farnsworth, who is Dean and John Jeffers Research Chair in Law at the University of Texas School of Law, has written an engaging, easy to read guide to English style that adds to his works on persuasion and rhetoric.[1] The text includes examples, mostly from the eighteenth and nineteenth centuries from well-known stylists such as Abraham Lincoln and Frederick Douglas. It also includes examples from Shakespeare and the Bible alongside more modern examples from Franklin Roosevelt and Churchill.

Farnsworth begins, where we all must: Simplicity. “There are two ways to say almost anything in English: with little words or big ones.” The book discusses how the English language developed from words with Germanic or Saxon roots and words with French or Latin roots. Saxon words tend to be shorter and more direct and thus, should be preferred by writers. He provides a list to demonstrate:

Next, the author discusses word choice and rhetorical devices such as metonym and hyperbole and how to use those devices to great effect. He then turns to sentence structure and length and provides examples of the effective use of variation to engage and persuade. A discussion of passive voice includes examples of its effective use.

The final third or so of the text discusses rhetorical devices such as anacoluthon—a technique to challenge readers to think more deeply or to represent stream-of-conscious thought; rhetorical instruction and announcement; and cadence.

One thing the text lacks is annotations to the examples. While the text often discussed the use of techniques in the examples, it would have been helpful to visually highlight the use of different techniques in a few of the examples in each section to draw the reader’s attention to the technique. This is a small quibble, and perhaps reflects more on this author’s shortcomings than on the text.

Classical English Style will help improve both written and oral advocacy; Farnsworth writes in a clear concise style—himself a model of classic English style.

 

[1] Ward Farnsworth, Classical English Rhetoric (2016); Ward Farnsworth, Classical English Metaphor (2010).

 

Jamison v. McClendon: Lessons in Rhetoric and Persuasion

The recent district court slip opinion in Jamison v McClendon, __ F. Supp. 3d __, 2020 WL 4497723 (S.D. Miss. Aug. 4, 2020), granting a police officer qualified immunity in a section 1983 action generated a great deal of discussion and analysis in the legal writing community.  United States District Judge Carlton Reeves of the Southern District of Mississippi used plain language and established rhetorical tools to craft a beautifully-written and compelling order.  In substance, the order is a much-needed indictment of how far the qualified immunity doctrine has crept beyond its beginnings.  In form, the slip opinion has a great deal to teach us about writing. 

If you have not read the Jamison Qualified Immunity Order, I highly recommend you take the time to read the slip opinion.  The introduction alone provides lovely lessons in style while thoughtfully advocating for us to increase justice for all.

Judge Reeves began with a traditional “hook” or interest-catching device, listing activities plaintiff was not doing: 

Clarence Jamison wasn’t jaywalking.¹

He wasn’t outside playing with a toy gun.²

He didn’t look like a “suspicious person.”³

. . . .

Jamison, 2020 WL 4497723 at *1-2.  Each footnote reminds us of the tragic case connected to the quoted facts, such as footnote 1 regarding jaywalking, which explains, “[t]hat was Michael Brown,” and footnote 2, noting, “[t]hat was 12-year-old Tamir Rice.”  Id. at *1 nn. 1-15.  The court included fifteen examples, using the technique of repetition to paint a vivid picture of the vastness of police misconduct in recent years.   Id. at *1-2.

Next, Judge Reeves succinctly and persuasively summarized the facts, mixing complex and simple sentence structure while using straightforward language:

Clarence Jamison was a Black man driving a Mercedes convertible. 

As he made his way home to South Carolina from a vacation in Arizona, Jamison was pulled over and subjected to one hundred and ten minutes of an armed police officer badgering him, pressuring him, lying to him, and then searching his car top-to-bottom for drugs.

Nothing was found.  Jamison isn’t a drug courier.  He’s a welder.  

Unsatisfied, the officer then brought out a canine to sniff the car. The dog found nothing.  So nearly two hours after it started, the officer left Jamison by the side of the road to put his car back together.

Id. at *2.

The court finished the introduction with a traditional roadmap.  Judge Reeves explained the overall role of precedent and stare decisis, stating:  “This Court is required to apply the law as stated by the Supreme Court.  Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity.  The officer’s motion seeking as much is therefore granted.”  Id. at *3.  But the court continued, “let us not be fooled by legal jargon,” because “[i]mmunity is not exoneration.”  Id.  Finally, the court previewed the rest of the opinion by explaining how the case demonstrated “the harm done to the nation by this manufactured [qualified immunity] doctrine.” Quoting the Fourth Circuit, the court ended the introduction:  “This has to stop.”  Id. (quoting Estate of Jones v. City of Martinsburg, 961 F.3d 661, 673 (4th Cir. 2020)).

In the body of the slip opinion, Judge Reeves used history, respected scholarship, and case law to explain why reviewing courts should consider limiting the application of qualified immunity. In other words, the court specifically illustrated precedent and aptly connected the law to this case and to the broader rules of qualified immunity.  Then, ending the slip opinion with a specific call to action, Judge Reeves charged us:  “Let us waste no time in righting this wrong.”  Id. at  *29.  At least one court has already cited the slip opinion.  See Peterson v. Martinez, 2020 WL 4673953 *5 n. 5 (C.D. Cal. Aug. 12, 2020) (“The reader is referred to the excellent opinion of the Hon. Carlton W. Reeves in Jamison v. McClendon . . . describing the unhappy development of qualified immunity jurisprudence.”). 

Commentators’ opinions differ on whether the Jamison court should have found the underlying facts here outside the scope of qualified immunity.  But the clear tone, repetition, common sense language, and strong use of authority make the order an especially nice example of persuasive writing.

Footnoted Citations - Ramos v. Louisiana

Justice Gorsuch’s opinion for the Court in Ramos v. Louisiana,[1] which held that Louisiana’s and Oregon’s laws allowing conviction by non-unanimous juries violated the Sixth Amendment right to a jury trial, drew much commentary. There were discussions of its holding and the lineup of the majority and minority. And on #appellatetwitter, there was much discussion of Justice Gorsuch’s decision to forego in-text citations in favor of footnoted citations in the majority opinion. Justice Gorsuch’s choice rekindled one of the many debates on style[2] that are always smoldering on #appellatetwitter.

Professor Orin Kerr (@orinkerr) seems to have reignited the #appellatetwitter debate with his tweet of April 21, 2020: “Reading Ramos, I am struck by the citation style: It’s the first Supreme Court majority opinion I recall in which all citations are in footnotes. I find that style annoying, I confess. If citations are important enough to include, put them in the text.”[3] Professor Kerr’s tweet prompted responses from judges, attorneys, other professors, and noted lexicographer Bryan Garner. The following day, Garner, a champion of footnoted citations, devoted an episode of this twitter video log Curious Mind to discussing his thoughts on why it’s better to place legal citations in footnotes.[4]

Garner co-authored Making Your Case: The Art of Persuading Judges,[5] with Justice Gorsuch’s predecessor, Justice Antonin Scalia. There, the authors debated in-text versus footnoted citations.[6] Of course, Garner argued for the use of footnoted citations;[7] Justice Scalia, “disapprove[d] this novel suggestion.”[8] So let’s review some of the pros and cons of both and then you decide which you favor.

But first, let’s take a moment to think about the work citations do in legal writing. Citations serve at least two primary purposes: they tell us how to locate the cited source and they tell the reader the importance of the cited authority, i.e., the weight of the authority.[9] The latter is important because it helps the reader evaluate the relative value of one authority as compared to another.[10] We evaluate the weight of authority by its source. Is it a primary source or secondary source? If it’s a court opinion, what court decided the case? Is it a constitutional provision, a statute, or a regulation? How recently was the case decided or the statute enacted?[11] So, whether one chooses to use in-text citations or footnoted citations, the reader must be able to evaluate the weight of the cited authority. And because appellate advocates respect and value their reader’s time, they want to make it easy for their reader to evaluate the weight of the authority.

Those, like Garner, who favor footnoted citations contend that putting citations in footnotes aids readability while still allowing the reader to evaluate the weight of authority.[12] Those who follow Garner’s approach and footnote citations would write something like, “More than forty years ago, the Court decided Abood v. Detroit Board of Education.”[13] This communicates the relative age of the case and the court that decided the case. The footnote then contains only the part of the citation that tells the reader where to locate the case. If done well, footnoted citations let the reader evaluate the weight of the cited authority without forcing the reader to read—or more likely skip over—the information that tells her where to locate the authority.

Those who favor in-text citations, like the late Justice Scalia, argue that footnoted citations bloat the text with information that could be more easily conveyed in a traditional in-text citation.[14] So the in-text citation would be something like, “In Abood v. Detroit Board of Education, 431 U.S.  209 (1977) . . . .” This conveys the same information as the example above, but now the information is all within the textual sentence.

The in-text citation crowd has one other argument that perhaps carries the day, at least for now. Legal writers and readers are traditionalists and “Judges are uncomfortable with change.”[15] Appellate advocates are unlikely to put off our judicial reader by following the tradition of in-text citation. We risk doing so if we footnote citations. This is particularly true if the writer using footnoted citations isn’t careful to include within the text the information the reader needs to evaluate the weight of authority.

Returning to Justice Gorsuch’s opinion for the Court in Ramos, it was the first majority opinion in which he footnoted the citations. And just three days after Ramos was decided, the Court released its opinion in Romag Fastners, Inc. v. Fossil, Inc.,[16] with Justice Gorsuch again writing for the majority. There he used in-text citations. So, while Justice Gorsuch rekindled the #appellatetwitter debate, perhaps he too is unsure which style to prefer.

 

[1] No. 18-5924, slip op. (U.S., April 20, 2020).

[2] Other common debates on style include whether writers should use one space or two after a terminal punctuation mark and the best font.

[3] Tweet by @orinkerr, April 21, 2020, https://twitter.com/OrinKerr/status/1252526810019004418

[4] https://twitter.com/BryanAGarner/status/1253005857035608064.

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

[6] Id. at 132-35.

[7] Id. at 132-33.

[8] Id. at 133.

[9] Alex Z. Chew, Citation Literacy, 70 U. Ark. L. Rev. 869, 879-80 (2018).

[10] See id. at 881.

[11] Id.

[12] Scalia & Garner, supra note 5, at 132.

[13] 431 U.S. 209 (1977).

[14] Scalia & Garner, supra note 5, at  134.

[15] Id.

[16] No. 18-1233, slip op. (U.S., April 23, 2020).

Phantom Precedents in Ramos v. Louisiana

If stare decisis really is for suckers, the Supreme Court’s decision in Ramos v. Louisiana[1] was an unremarkable end to the anachronistic Apodaca v. Oregon[2] decision permitting states to convict criminal defendants without unanimous jury verdicts. But for those that have argued for a strong stare decisis tradition and defended the doctrine’s importance, the Ramos opinion’s sustained discussion of when to overrule a precedent is a fascinating read.

First, Ramos reiterated that a relatively weak tradition of stare decisis is in vogue on the Supreme Court. In a process that culminated in 2018’s Janus v. AFSCME opinion,[3] the Court has recently moved towards a version of stare decisis that focuses on the poor quality of a precedent’s reasoning, even permitting the Justices to overrule on that basis alone. In contrast, a strong stare decisis tradition sets “poor reasoning” as a condition precedent to stare decisis analysis, not a ground for reversal; such reversals occur only if there is a special justification, such as unworkability, strong reliance interests, new legal developments, or vastly changed facts. Writing for the Court, Justice Gorsuch quoted the weak version of stare decisis in Franchise Tax Board of California v. Hyatt—which in turn relied upon the formulation in Janus—to emphasize that the quality of a decision’s reasoning is the primary consideration within stare decisis analysis.[4] His argument against Apodaca then focused on its “gravely mistaken” reasoning, which made it an outlier in the Court’s Sixth Amendment and incorporation jurisprudence and engendered the reliance of only two states.[5] In addition to the three Justices that joined Gorsuch’s opinion in full, two concurring Justices, Cavanaugh and Thomas, would likewise make the quality of a precedent’s reasoning the primary consideration, if not the singular consideration, in the stare decisis tradition.[6] And even the three-Justice dissent made its argument in defense of Apodaca on the weak stare decisis tradition’s terms. The dissent—an unexpected alignment of Justices Alito, Roberts, and Kagan—argued that Apodaca was not nearly as poorly reasoned as the majority would have it, but was silent on whether such poor reasoning should be a reason to overrule.[7] The dissent’s silence on that point was even more thunderous given Kagan’s prior insistence that “it is not enough [to overrule because] five Justices believe a precedent wrong.”[8]

Second, Ramos introduced a new facet to the stare decisis debate. Can some precedents be so fractured and incomprehensible as to be no precedent at all, becoming a “phantom precedent?”[9] Three Justices that joined the primary opinion in full argued that Apodaca was just such a jurisprudential apparition. For that trio, Apodaca failed to supply a “governing precedent” because its controlling opinion came from a single Justice, Powell, supporting a theory of “dual-track” Sixth Amendment incorporation that a majority of the Apodaca Court itself rejected.[10] And while Sotomayor wrote separately without adopting that portion of the primary opinion, her own view was remarkably similar. She claimed Apodaca was a “universe of one” that was so “irreconcilable with . . . two strands of constitutional precedent” that its precedential value was minimal, if not evanescent.[11]  

Those opinions offered little insight into how to identify the phantom precedents within the many fractured opinions the Court issues each term. Perhaps Apodaca was uniquely unable to generate precedential value; without any guiding principles to identify why that decision was a phantom, it is hard to tell. Perhaps the view that Apodaca is a phantom precedent merely expresses discomfort with the rule in Marks v. United States that the Court’s holding in a fractured opinion is “that position taken by those Members who concurred in the judgments on the narrowest grounds.”[12] Powell’s Apodaca opinion seems to fit that bill, but perhaps the Ramos Court marks the start of a new method to measure the holding of fractured opinions. Or perhaps Ramos intimates the Supreme Court’s desire to allow some of its opinions to have little or no precedential effect, much like the now commonplace unpublished decisions that I have discussed elsewhere on this blog.

Ramos is a complex decision with many layers to unpack beyond the few I’ve mentioned here. But its take on stare decisis is utterly fascinating. In future years, it may mark an important turning point for a doctrine whose death has been reported with great exaggeration.

 

[1] 590 U.S. ___ (2020).

[2] 406 U.S. 404 (1972).

[3] 585 U.S. __ (2018).

[4] Ramos, 590 U.S. ___ (2020) (slip op., at 20).

[5] Id. (slip op., at 20-22).

[6] Id. (slip op., at 7-8, 10-11) (Kavanaugh, J., concurring) (suggesting that the first factor in stare decisis analysis is whether the precedent is “grievously wrong,” which Apodaca was); Id. (slip op., at 2-3) (Thomas, J., concurring) (claiming that “demonstrably erroneous” decisions must be overturned irrespective of any practical stare decisis considerations).

[7] Id. (slip op., at 13-15) (Alito, J., dissenting).

[8] Knick v. Township of Scott, 588 U.S. __ (2019) (slip op., at 16) (Kagan, J., dissenting) (citing Kimble v. Marvel Entertainment, LLC, 576 U.S. __ (2015) (slip. op., at 8)).

[9] Ramos, 590 U.S. ___ (2020) (slip op., at 7) (Alito, J., dissenting).

[10] Id. (slip op., at 16).

[11] Id. (slip op., at 2) (Sotomayor, J., concurring).

[12] 430 U.S. 188, 193 (1977).

Narrative Arguments Built on the Sand

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

"Digital Public Commentary": A New Rhetoric for Lawyers?

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.

After a hiatus, the Rhaw Bar is back to explore lawyer digital public commentary and raise some initial questions about lawyers engaging in digital rhetoric.

In Formal Ethics Opinion No. 480, issued in the Spring of 2018, the American Bar Association Standing Committee on Ethics and Professional Responsibility considered for the first time how a blogging lawyer must treat the confidentiality of client information. In deciding that the confidentiality rules applied to internet blogging, the Committee identified a category of lawyer speech it called “communicat[ion] about legal topics in public commentary.” The Committee recognized that while lawyers have historically “comment[ed] on legal topics in various formats” through “educational programs” and “articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews,” the “newest format [for comments] is online publications such as blogs, listserves [sic], online articles, website posting, and brief online statements such as microblogs (such as Twitter®).” The Committee said that “[o]nline public commentary provides a way to share knowledge, opinions, experiences, and news.” 

Although the point of this opinion was not necessarily to identify a new cateogry of legal writing but instead to warn lawyers that their obligations of confidentiality extend to their non-client-centered public speech, the opinion has the secondary effect of raising two questions.  First, is a lawyer's digital public commentary a unique genre of legal writing?  And, if it is, what are the rhetorical possibilities for and problems of this form?

I'm going to make the case that writing public commentary--whether digital or not--is a unique genre of legal writing.  First, writing public commentary to influence thought and discourse on legal topics is decidedly less client-centered than other, more traditional forms of legal writing.  Writing public commentary is more connected to the lawyer's role as a "public citizen with a special responsibility for justice" than it is to the lawyer's role as a representative of clients.  Both of these roles are identified (along with others) in the Preamble to the Model Rules of Professional Conduct (most if not all states have adopted the Preamble's language). 

Second, the idea of the lawyer speaking publicly is implicit in what the Preamble says about the lawyer-as-citizen role.  The Preamble directs that “a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law[,] and work to strengthen legal education.” The Preamble further offers that a lawyer should “further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”  Both of these activities--cultivating knowledge and furthering public understanding--require communication with the public, not exclusively with courts, clients, or opposing parties in private and semi-private transactions. And if the public is now digital, it makes sense for the lawyer to communicate with that audience digitally.

So, I think the Committee was right to expressly identify "public commentary" as something different from the other forms of writing lawyers do.  And although lawyers making public commentary is an old phenomenon, the Committee rightly recognized that the "digital" is new.  

The digital information and arguments lawyers present to the public about legal matters of collective concern are a form of  "digital rhetoric," rhetoric that is electronic or computerized.  While digital rhetoric has characteristics in common with other forms of rhetoric, it also has some unique features.  Two of those features are circulation and fragmentation. 

Circulation refers to the way a message moves from audience to audience across space and time.  The rapid velocity at which messages circulate is perhaps the defining characteristic of the digital environment. In the past, messages had to be shared face-to-face or through print documents physically sent from one person to another. (Think of the idea of the "circulation" of a newspaper, referring to the measurement of how many readers a newspaper had.)  Message circulation increased and accelerated with television and radio.  But, even then, gatekeepers controlled the amount, speed, and movement of information via those media.  With the internet, however, both the speed and range of message circulation has increased again.  That is, a message can find itself instantly anywhere in the world, be subject to minimal gatekeeping (at least in free societies), be seen by limitless audiences, and be responded to by those audiences instantaneously.

Fragmentation means that a digital message can be broken into smaller pieces and those fragments can be reused, repurposed, or reformed in other digital messages.  That is, when composing messages in and for internet spaces, the resources of invention come not only from one's own internal thoughts but also from mixing and remixing what can be found in other messages already in circulation.  In the digital world, fragmentation is more common and more frequent than with messages that appear in print, for example.  This means that online speakers and audiences have more resources for thought and argument than in other contexts but at the same time may face more difficulty in making sense of messages that have been mashed and mixed in ways not originally anticipated.

So, if lawyers’ online public commentary is both a unique genre of legal writing and a digital rhetoric, what questions might we ask about the challenges and opportunities digital legal commentary presents?  

First, we might ask questions about the resources available to lawyers in the digital space.  What methods and sources, unique to digital rhetoric, are available to lawyers who want to be commentators in digital spaces?   Are/should any of those methods be ethically off limits to lawyers?  Conversely,  how might we adapt traditional rhetorical resources and approaches to apply to digital public commentary about the law?  For example, how do our traditional ideas about effective organization, style, and delivery apply in the digital space?  

Second, we might ask questions about the quality of lawyers’ messages and the risks posed by message fragmentation and rapid circulation.  What concerns for accuracy and influence of the lawyer's message do rapid circulation and fragmentation present for the lawyer?  Is misuse and misinterpretation of message fragments inevitable?   If a lawyer's commentary on a legal issue is broken apart and is re-used in ways the lawyer did not foresee, what are the ethical and rhetorical implications for the lawyer?  How do lawyers influence the limitless audiences that may encounter all or fragments of the lawyer's message?

Finally, we might ask questions about the a lawyers' duties in the context of digital rhetoric.  If lawyers are supposed to be public-citizens educating the public on legal issues, do lawyers have an obligation, not just an opportunity, to use digital rhetoric for this purpose? Must lawyers be rhetorically "competent" in digital public commentary, and, if so, what does fulfilling that duty look like?  

These questions demonstrate that the digital space presents new challenges and opportunities for lawyers as well as new ways of thinking about what what forms of persuasion are effective and appropriate for legal commentary in a digital world. These questions are worth thinking (and writing) about as digital communication spaces become even more prevalent and lawyers participate in them more.  Your thoughts are welcome in the comments below.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

 

From Novices to Master Legal Writers

Much has been written about how people learn, including studies showing that people move from being novices to masters, passing through various stages along the way.[1]  When learning new skills, novices act with a “rigid adherence to taught rules or plans” and use “little discretionary judgment.”[2]  As they move toward expert and mastery status, they no longer need to strictly rely on “rules, guidelines or maxims.”[3] They have a “vision of what is possible,” they have an “intuitive grasp of situations based on deep, tacit understanding,” and they can improvise.[4] 

Moving from novice to master in any field at any skill typically requires a person to learn fundamentals before learning to manipulate or vary the fundamentals to become more effective at the skill.  For example, when students are taught to form letters at an early age, they are taught to draw the lines of the letters in a particular direction and to match model letters exactly.  Only after mastering the fundamentals of drawing letters do students begin to vary the precise models by adding personal touches that they think look better or flow better, yet still communicate the letters clearly.  Similarly, athletes first learn the fundamental skills of their sports and practice those fundamental skills extensively.  As these athletes practice and learn more about their sports and move toward mastery, they begin to improvise to perform the skills in unique ways that elevate the athletes’ performances to expert or master levels.  Varying the technique of performing a skill by someone who has mastered the skill is accepted and even admired when the person is performing at a top level.  If athletes are not performing effectively, though, coaches often insist that the athletes return to fundamentals to improve their games. 

Like students first learning to draw letters and athletes first learning the skills of their sports, law students and new lawyers must begin with fundamentals and work through the stages, from novice to master, when engaged in legal argument and writing.  Professors and lawyers working with these novices must exercise patience as they wait for these law students and lawyers to develop.  A common refrain from lawyers working with novice legal writers is that these novice writers do not write persuasively enough.  Perhaps this is because they are novices who have not mastered legal argument and writing sufficiently to improvise—to vary from the “taught plans or rules” and use their discretion.  They do not yet have a deep, tacit understanding of how far they can push their arguments beyond the existing law and how strongly they can tell the court how it should find or hold.  They are new to legal discourse; they do not know how bold or creative they can be.  They are like the children learning to draw letters who try to precisely follow the models of letters and do not dare to add an unnecessary flourish or variation.  They have not yet reached mastery. 

Frustrated by the work of novices, professors, lawyers, and judges sometimes criticize these writers for following formulas and not taking more license with their writing.  Novices even worry that their “formulaic” writing may be a problem.[5]  Legal writers are taught to use formulas, such as IRAC and CREAC,[6] to ensure that they provide the information necessary for a solid legal argument and analysis.  These formulas are used because they track a logical way to present information needed for legal arguments.[7]  Judges are looking for arguments that are supported by rules, explanations of those rules, and application to the facts involved in a case.   As these writers practice and learn more about writing legal arguments persuasively, they will become more adept at varying structures of their arguments.  They will learn when to depart from rigid adherence to taught rules when doing so will make their writing more persuasive.    

A suggestion for these novices and their professors and mentors is that the novices write a draft using IRAC or CREAC to ensure that they have included the necessary information.  Once a draft exists, the writer should then revise and edit the work to turn it from an accurate statement of the law and reasoning to a persuasive piece of advocacy.  This may involve deliberately altering the formulas employed.  For example, precedent case discussions might follow a rule as part of a rule explanation when the precedent case discussion is necessary to explain and interpret the rule.  On another point of law or argument, the precedent case discussion might follow the application of the rule to the case at issue.  Deciding to make this move says to the court that this is the rule, this is how the court should apply it to the facts, and the precedent case corroborates the argument being espoused.  This way guarantees that the court will not become distracted by a precedent case discussion when it comes before the argument involving the case at issue.  It also risks that the court might have wanted a fuller exposition of the law before the argument.  As the writer gains expertise and begins to master persuasive legal writing skills, he or she will become better at determining the best way to proceed in writing an argument, confidently moving away from rigidly following taught rules or plans when appropriate.   

Instructing the novice on the necessary parts of an argument and how to order the parts of an argument is valuable, as is emphasizing to the novice the importance of revising and editing.  Even though the novice will adhere to a formula initially, the novice will only improve as a writer if he or she is willing to experiment with revising to make arguments more compelling.   Novice writers tend to underestimate the value and necessity of revising and editing.  The best writers know that rarely if ever is the first draft the best draft.  Once a writer writes the parts necessary to make an argument, that writer should move the parts around, manipulate the language, and present the arguments in the best format to make the case to the court. 

So, to professors and supervising lawyers, expect to instruct students and new lawyers on how to make their writing more persuasive.  Expect to revise and edit their writing to show them exactly how to do this effectively.  Model the behavior you want to see in these novices.  And, with time, the arguments and the writing will be more persuasive as the writers move toward mastery.      

 

[1] See, e.g., Stuart E. Dreyfus, The Five Stage Model of Adult Skill Acquisition (June 1, 2004), https://www.bumc.bu.edu/facdev-medicine/files/2012/03/Dreyfus-skill-level.pdf.

[2] Raman K. Attri, 7 Models from Research Demystify Stages in Novice to Expert Transition (Nov. 18, 2017), https://www.speedtoproficiency.com/blog/stages-in-novice-to-expert-transition/.

[3] Id.

[4] Id.

[5] Mary Beth Beazley, A Practical Guide to Appellate Advocacy 97 (5th ed. 2019).

[6] IRAC: Issue, Rule, Analysis, Application, or Argument, and Conclusion.  CREAC: Conclusion, Rule, Explanation, Analysis, Application, or Argument, and Conclusion.

[7] See Beazley, supra note 5.

“Good People, Speaking Well”: Virtue, Eloquence, and the Esteem of Lawyers

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.

Today’s Rhaw Bar asks:  can a lawyer be rhetorically effective if the lawyer lacks good character? A Roman rhetorician, Quintilian, didn’t think so. His “ideal orator” needed both eloquence and virtue. Quintilian’s ideas can reframe lawyers’ perceptions of their own work.

In popular culture, “rhetoric” is often used as an insulting term, not a complimentary one. For example, a speaker’s words might be called “empty rhetoric” or “merely rhetoric,” meaning the message is manipulative, dishonest, or insincere. In at least some cases, the implication is that the speaker who is engaging in “empty” or “mere” rhetoric has a poor character rather than a good one. That is, one who engages in “empty rhetoric” is also not a good person.

But first century Roman lawyer and rhetorical scholar Quintilian thought just the opposite. Yes, you read that right: only the “good person, speaking well” (a paraphrase of Quintilian’s words) could engage in rhetoric.

Marcus Fabius Quintilian taught and wrote about rhetoric during the Roman Empire (in the first century A.D.), when the emphasis on rhetorical training and in handbooks was primarily on legal rhetoric. This makes the work of classical Roman rhetoricians like Quintilian particularly helpful to practicing lawyers. (If you want to explore further, take a look at the works of Cicero, writing in the first century B.C.E., and at the anonymously authored Rhetorica Ad Herennium, written around the same time.) In both practice and teaching, Quintilian focused his work on legal rhetoric, and his Institutio Oratoria was his opus on teaching rhetoric.

In Institutio Oratoria, Quintilian describes, among other things, the “ideal orator,” the person who perfectly engages in rhetoric. He argues that rhetoric is not amoral; rather, rhetoric is necessarily moral—the orator’s job is to say what is “just and true.” Accordingly, Quintilian makes virtue a necessarily component of practicing rhetoric; any influential speech that lacks virtue is merely persuasion, not rhetoric.

So, who is this ideal orator who can “do” rhetoric? Quintilian answers: no person can be an orator (i.e., “do” rhetoric) unless that person is a good person—one who chooses virtue over vice, discernment over deception. For Quintilian, virtue is connected to sincerity. Only a virtuous person can be sincere and thus persuade to truth; a “bad” person, on the other hand, while perhaps capable of eloquence (i.e., speaking well), is insincere and thus not capable of rhetoric. The ideal orator is the person who has “the knowledge and boldness to speak with sincerity” while a person of “bad” character is one utters words “at variance” with his thoughts. In sum, perfect eloquence is the combination of speaking well and having virtue or, in other words, speaking well with sincerity.

Well, then, so what about this? Why should lawyers pay any attention to splitting hairs about what rhetoric—and the practicing of it—can mean?

Here’s one idea: In a 2013 Pew Research Center Study, lawyers were rated lowest in the amount of esteem the public holds for them. But Quintilian’s unbreakable connection between virtue and eloquence in the practice of rhetoric empowers lawyers to make a claim for lawyering as a virtuous profession. The craft of legal advocacy—advocacy that is grounded in rhetorical theory more than two millennia old—is, by definition, ethical, moral, virtuous. Framing the practice in this way has the potential to improve lawyers’ sense of the profession’s value to society and, as a consequence, improve their career satisfaction. Great legal advocacy is not insincerity; it is, by Quintilian’s definition, both sincere and effective, worthy of esteem.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

An Ethos for Giving Feedback to New Legal Writers: Expert Coach, not Rival Writer

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.

Today’s Rhaw Bar is inspired by the start of a new law school year.  I’ve been teaching legal writing courses for nearly twenty years, and it’s always right about now that I start collecting myself and my thoughts for the feedback I’ll be giving new legal writers on their writing.  I also start thinking about the lawyers and judges who will be welcoming recent graduates into the practice and who might also be supervising those new lawyers and giving them feedback on their legal writing.

In this post, I describe a perspective an experienced lawyer can adopt for giving feedback to novice legal writers; an experienced lawyer can think about giving feedback as establishing a particular kind of ethos—the ethos of an “expert coach.”  By taking the perspective of an expert coach when giving feedback, the experienced lawyer can help the novice legal writer more fully engage with the feedback and ultimately be a more effective, competent, and independent legal writer in the future.  

The idea of developing a positive ethos for feedback is explored in depth in my article, “Building Credibility in the Margins: An Ethos-Based Perspective for Commenting on Student Papers,” so you can read more about the rhetorical theory that supports this perspective there.  In addition, if you are interested in reading even more about how to give feedback to legal writers, take a look at Volume 1 of the Legal Writing Institute’s Monograph Series, The Art of Critiquing Student Work.  While these articles are mainly about the feedback given by faculty to students in law school, the ideas in the monograph articles are transferable to the mentoring and supervising relationships between more experienced lawyers and novice legal writers who are just beginning their professional legal writing careers.

A Commenting Ethos Is A Perspective, Not A Technique

Mostly, when I talk with others about giving feedback to legal writers on their writing, we end up talking about the “techniques” for giving good feedback.  Examples of techniques for giving feedback include “be sure to include feedback that is positive,” “avoid critical comments that start with the word ‘you,’” and “use a describe-evaluate-suggest” structure for your comments.”  These techniques are all important in constructing effective feedback (both written or oral) for others’ legal writing.  (You can learn about some of these techniques in the monograph and at the end of this article.)  But, this post is not about technique.  Instead, it is about the perspective one can take when giving feedback.  That is, how should one think about the feedback task?  How should a lawyer giving feedback approach the work?  What attitudes should she adopt?  

One perspective you can take on giving feedback is to think of feedback as a place where you construct who you are as the person giving feedback, a place where you construct your ethos.  Ethos (one of the Aristotle’s three artistic modes of persuasion—ethos, pathos, and logos) is the idea that a person’s identity—as perceived by the audience—has persuasive force.  

Aristotle considered ethos as having three dimensions: competence, character, and goodwill.  In the context of giving feedback to newer lawyers, this means demonstrating that you, the commenter, are competent to give the feedback, are of the right character to give the feedback, and have goodwill toward the writer in giving feedback.  A positive commenting ethos can help you meet the goals of persuading the writer engage with your feedback, to improve the document (and the next document), to better understand the writer’s audience, and to be more confident and competent to draft and revise in the future.  Conversely, developing a negative feedback ethos can result in giving feedback that is ignored or not implemented fully—the perception of your competence, character, and goodwill doesn’t persuade the audience to listen to you.  

Ethos is not something that you craft exclusively on your own; instead, ethos exists at the intersection between you, others with whom you interact, and the groups or communities in which you are a member.  In other words, ethos is a social act that takes place in a particular cultural context.  Thus, when giving feedback on the legal writing of others, you and your audience are acting together to construct your ethos for the feedback situation.  The perspective you bring to that interaction can work to shape how your audience will interact with you to shape your credibility as a source of feedback.  I’ve found that taking a perspective that emphasizes the ethos of “expert coach” rather than “rival writer” will improve your feedback’s appeal.

A Positive Commenting Ethos:  Expert Coach, Not Rival Writer

Developing an “expert coach” commenting ethos can help you make choices in your feedback that will appeal to novice legal writers, engage them, and improve their writing. So, what is the ethos of an “expert coach”?

An expert coach is comfortable with (but not arrogant about) his or her competence and seeks to demonstrate that competence through detailed and kind feedback.  The expert coach does not want to make the novice writer feel poorly about being a novice or about missing the mark on a first or even second attempt at a final product.  Instead, the first goal of the expert is to show the novice that the expert is speaking on behalf of the community of readers and writers—that the expert is a “fellow legal reader.”  This ethos of expertise coupled with fellowship builds the novice’s trust in the feedback and in the person giving it.  

The expert coach’s second goal is to bring the new legal writer into the community by revealing the range of the accepted practices in the community to which the new writer wants to belong.  This is the coaching perspective—the experienced lawyer sees himself as the source of detailed information that gives the novice writer insight into the audience’s needs and expectations.  The goal of the expert is to build the novice’s confidence in herself so that she will make further efforts to join the community of legal writers and readers.

The expert coach does not project himself as authoritarian, someone who “tells” the new writer what to do or rewrites the document so that it is “right.”  Instead he sees himself as an authority who knows much about the subject of legal writing and can guide, model, and make suggestions for someone who doesn’t have the same level of knowledge.  The expert coach knows that she wants to convey feedback in an objective rather than a judgmental tone, using a tone that builds trust rather than exacts judgment or conveys irritation, impatience, or annoyance.  An expert coach knows that supportive patience is essential to building the trust that results in the novice benefitting from the feedback.

An expert coach sees herself as sitting “alongside” the novice writer; the coach is not a rival trying to take control of the novice writer’s work or to demonstrate why the expert “wins” and the novice “loses.”  Instead, the expert coach understands that the goal of the feedback is to give the writer power, not to take power away.  Thus, the feedback tone is collaborative, not competitive, and the feedback content is reflective and engaging, not simply a rewrite of the novice’s work.  The expert coach adopts an ethos that makes feedback empowering and gives the novice both ideas and options for how to improve.  

Adopting a coaching ethos is particularly useful in relationships of supervision. If mentors and supervisors want mentees and subordinates to grow as writers by thinking, making choices, and exercising judgment for themselves rather than doing only what they “are told to do,” feedback should empower novices to get comfortable thinking, choosing, and judging.  So, a good commenting ethos abandons a “rival” perspective and takes a seat “alongside” the novice as a fellow legal reader who encourages independence and responsibility-taking.  

Because giving feedback on legal writing is such a practical, hands-on activity, it may seem a bit impractical and high-minded to focus attention on developing a perspective from which to begin the task.  But, I’ve found that being intentional about the ethos I am constructing in the feedback process has helped me meet my feedback goals.  If the goals of your feedback are to help new legal writers learn; join the discourse community; and be more independent, confident, and successful writers, developing an expert coach ethos will help you achieve those results.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.  

 

 

 

Setting Off Text for Attention and Meaning—The Visually Rhetorical Em-Dash

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.

Today’s Rhaw Bar returns to the rhetorical strategy of setting-off text as a way focus a reader’s attention and create meaning. In my post from a month ago, I described how using lists in legal writing employs visual rhetoric strategies to both stack-up and set-off important information. In this post, I return to the concept of setting off information, this time through a punctuation mark: the em-dash.

In his 2006 book, The Economics of Attention: Style and Substance in the Age of Information, Richard Lanham argues that “attention is the commodity in short supply” in an information economy. Legal writers know this all too well; they have an ethical duty to keep a reader’s attention focused on the content of complex legal documents. But busy legal readers are inundated with more information than they can possibly digest, have access to that information at speeds faster than ever, and are likely subjected to more distractions from reading on screens that are animated with competing demands on the reader’s attention. In a digital world, the legal writer’s need to point the reader toward important information is more critical than ever.

A punctuation mark can be an efficient and effective way to visually call a reader’s attention to an important point and to shape the meaning of the text it punctuates. An underused punctuation mark with visual rhetorical impact for attention-getting is the em-dash. When used appropriately—and sparingly—the em-dash is an easily implemented, powerful visual rhetoric technique for legal writing.

Em-dashes typically are made by typing two hyphens between two words with no spaces between any of the characters. Remember that a hyphen (-), which connects compound words and modifiers (among others) like em-dash, absent-minded, or mother-in-law, is not an em-dash. An em-dash—appearing on either side of this text—is at least twice as long.

An em-dash visually separates (1) a phrase or clause within a sentence or (2) information at the end of a sentence from the rest of the sentence. When a pair of em-dashes are used within a sentence, they typically take the place of commas or parentheses; when a single em-dash is used toward the end of a sentence, it typically takes the place of a colon or semi-colon.

Em-dashes take advantage of both novelty and white space to draw the reader’s eye to text that either follows a single em-dash or lies between em-dashes. Used sparingly, em-dashes have novelty; readers will notice them and ask, “I wonder what this is about?” In addition, an em-dash creates more white space around text than that created by a comma, semi-colon, or colon, visually highlighting the selected information and causing the reader to notice it. While commas, parentheses, semi-colons, and colons also set-off information, they do so in a less forceful and attention-grabbing way. The em-dash, on the other hand, is more assertive and commanding—hey! this text is important!

An em-dash, however, does more than just call attention to text; the em-dash also provides a clue for the reader about how to give meaning to the sentence as a whole. The em-dash is a visually persuasive framing device; the em-dash helps the writer select a dominant meaning for the sentence while deflecting other meanings that are available.

Take for example this sentence from a legal argument in a case where Jones is arguing that Jones’s marriage to Smith should be annulled because the marriage took place while Jones was under duress:

Smith sent Jones an email the day before the wedding threatening to expose Jones’s drug problem to his parents.

This sentence has essentially three pieces of information:

• Smith sent Jones an email.
• The email threatened to expose Jones’s drug problem to his parents.
• This email was sent the day before the wedding.

In the sentence above, all three pieces are expressed in a way that makes the ideas contained in them roughly equal in importance. That is, the frame of the sentence is balanced evenly, all of the ideas in the sentence share the same importance, and the reader is free to decide which parts of the sentence to give more or less attention.

But notice what happens to the sentence’s meaning when one of the pieces of information is set off with em-dashes:

Smith sent Jones an email—the day before the wedding—threatening to expose Jones’s drug problem to his parents.

Now, by using em-dashes, the writer causes imbalance in the sentence’s frame, visually setting off what the writer wants the reader to notice: the timing of the threatening email. The em-dashes guide the reader about how the sentence is meant to be read; the timing of the email is the most important information. The em-dashes help prime the reader to expect that Jones’s duress argument will be stronger because of the e’mail’s timing. By using em-dashes, the writer deploys dramatic interruption to call attention to important information and to shape the meaning of the sentence. And this is accomplished with only punctuation.

Notice what happens to the sentence if the writer wants to emphasize the content, not the timing, of the email:

The day before the wedding, Smith sent Jones an email—a threat to expose Jones’s drug problem to his parents.

Here, the em-dash sets off the text at the end of the sentence. Visually, the single em-dash acts almost like an arrow, pointing the reader toward what the writer wants to be the most important information. Structuring the sentence this way places the reader’s attention on the threatening email’s content.  Instead of being primed to focus on a timing argument, the reader is primed to focus more on the threatening language. By moving the em-dash to call attention to a different part of the sentence, the writer changes the meaning of the sentence for the reader.

While legal writers should use em-dashes to draw attention and to help create meaning, writers should be careful not to overuse them. Overuse causes em-dashes to lose their dramatic visual impact. Think of em-dashes like the salt on the top of a salted caramel. A little bit of salt enhances the sweet flavor, making the candy more satisfying; too much salt ruins the whole thing.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.  

Rhetorical Ontology, or Let’s Spend Some More Time Exploring the List

Welcome to Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law. In this series, the Blog will explore ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

Today’s Rhaw Bar introduces the concept of rhetorical ontology to help explain the persuasive power of the list. In my last post, I suggested that the list has the visual rhetorical features of stacking-up and setting-off information. In this post, I explore other persuasive features of the list through the lens of rhetorical ontology.

This post is not an exhaustive introduction to rhetorical ontology: consistent with the Rhaw Bar theme, we’ll be savoring just a little ‘bite” of the theory. While some readers may be skeptical about a post that explains rhetorical theory, I think that legal communicators become expert legal communicators when they understand rhetorical theory and use it to inform their writing. Understanding rhetorical theory makes legal writers wiser practitioners of the craft; writers can make better choices because they understand—or at least have a plausible way of understanding—why some rhetorical choices might be better than others in a given situation. What I’ve learned in twenty years of teaching legal communication is this: legal communicators with a working knowledge of rhetorical theory have a multitool at their disposal; without it, they risk using the same pocket knife for everything. That is, theory provides better understanding that leads to better doing.

So, with that, let’s look at rhetorical ontology as a theory that can help develop ideas about the way lists work to persuade in legal writing.

Rhetorical ontology —also known, loosely, as the “rhetoric of things”—posits that rhetoric happens at the level of material objects, not just at the level of language. That is, rhetoric is not just about humans assigning meaning to the objects around them. Rather, “things” have their own rhetorical agency—they are agents that interact in and impact rhetorical relationships.

Because rhetorical ontology focuses on the rhetorical agency of objects, one might think that “things” are limited to non-textual objects like trees or couches or rain or the freeway. But, as Scott Barnett and Casey Boyle point out in the excellent introduction to their book, The Rhetoric of Everyday Things, the classical rhetoricians recognized the ontological features of rhetoric in texts and symbols (interestingly, in the kind of texts lawyers work with):

One of the ways Aristotle [in his writings on rhetoric] distinguishes artistic and nonartistic proofs . . . is on the basis of their thingness and material reality. Artistic proofs are those the rhetor herself invents, and they include, most prominently, syllogisms and enthememes. The forms of nonartistic proof, on the other hand, Aristotle defines as laws, witnesses, contracts, tortures, and oaths. Although each of these has a clear discursive dimension, what distinguishes them from artistic proofs is that they “are not provided by ‘us’ but are preexisting.”

So, rhetorical ontology in brief writing, for example, might be thought of as the idea that the typical features of a brief (e.g., a question presented or jurisdictional statement) have persuasive agency in and of themselves, before we as writers creatively engage them. Extending a bit further, Barnett and Boyle suggest that rhetorical things “gather” other rhetors to interact on matters of common concern. In the context of a legal document like an appellate brief, motion, complaint, answer, discovery request, or contract, the document gathers to it other rhetors (e.g., attorneys, judges, clients, property, or other documents) to interact with it in particular ways that the document itself helps to define.

So, how does a list in legal writing gather us as writers and readers to a matter of common concern in a legal document? As I alluded in my prior post, a list gathers writers and readers to it by setting off and stacking up information. The ability to use white space to draw attention to itself and to show the weight of an argument are two aspects of the list’s rhetorical “thingness.”

But, a list has other rhetorical features that reveal themselves through the lens of rhetorical ontology: lists can convey disjunction, disrupt flow, create units for analysis, flatten hierarchies, and resist narrative.

Academic and video game designer Ian Bogost in his book, Alien Phenomenology, Or What It’s Like to be a Thing, places lists in the category of “ontographs”—“record[s] of things juxtaposed to demonstrate their overlap and imply interaction through collocation” (i.e. placing things side by side). Accordingly, says Bogost, lists produce disjunction, rather than flow, in presenting the relationship between concepts. Lists, in other words, let us see a collection of things or the units of an argument, concept, or idea, without necessarily showing the flow or connections between them. Moreover, in her book chapter, Cookery as Flat Ontography, academic Katie Zabrowski Dickman adds that lists, “upon reading, are jarring. The literal flow of our reading is disrupted as we traverse the commas between words in a list both visually and with our breathing. The jarring is productive, attuning us to the distinction between objects.” Zabrowski says that lists also resist the typical narrative structure of the “story”—a structure that legal writers frequently privilege in briefs as a way of presenting the client’s case.

Two examples from legal writing show the power of Bogost’s and Zabrowski’s theorizing to explain the persuasiveness of a list.

Local Rules for Statements of Material Facts.  Consider a version of the federal district court local rule that governs the features of summary judgment motions. That rule requires the statement of undisputed material facts in a motion be presented in a numbered list. For example, Local Rule 56.1(a) of the United States District Court for the Northern District of Illinois provides:

[A] moving party shall serve and file . . .a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law. . . .  The statement . . . shall consist of short numbered paragraphs . . . .  Absent prior leave of Court, a movant shall not file more than 80 separately-numbered statements of undisputed material fact.

The local rule emphasizes the lists’ rhetorical features highlighted above. First, the short numbered paragraph format dictates that the facts are detached from each other, broken apart into smaller units for consideration. This means that the separateness and isolation of each fact unit is emphasized, and a view of the facts as a whole is de-emphasized. Notably, the responding party is expected to engage the facts in the same disconnected manner, responding to each of the numbered fact paragraphs separately. Rhetorically, then, by demanding a list of facts, the rule privileges disconnection over connection, separation over integration.

Second, by requiring the presentation of material facts in a list, the rule limits writers’ ability to present facts in a narrative arc—a form that emphasizes the relationship between facts. Instead, the side-by-side nature of the list’s items makes the presentation less hierarchical; no one fact appears more important than another.  The facts are presented as separate units with equal weight.  By looking at the list an an ontograph, we can better appreciate how the local rule rhetorically shapes how the information in the list is structured, controlled, and ultimately perceived.

Creating Categories in Judicial Opinions.  Consider a footnote that appeared in the United States Supreme Court’s recent opinion in American Legion v. American Humanist Association, where the Court held that The Bladensburg Cross, a World War II memorial displayed on public property in Prince George’s County, Maryland, was not an unconstitutional establishment of religion under the First Amendment. In his opinion, Justice Alito set out a numbered list proposing six “rough” categories of Establishment Clause cases (internal citations omitted):

(1) religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies; (2) religious accommodations and exemptions from generally applicable laws; (3) subsidies and tax exemptions; (4) religious expression in public schools; (5) regulation of private religious speech; and (6) state interference with internal church affairs.

Justice Alito then suggested the possibility of seventh category in a separate sentence, saying “[a] final, miscellaneous category, including cases involving such issues as Sunday closing laws. . . and church involvement in governmental decisionmaking, . . . might be added.”

In Justice Alito’s categorizing footnote, the rhetorical ontology of the list can be seen at work. First, using a list format highlights a point that appears important to Justice Alito in the body of his opinion—the Establishment Clause is not an abstract monolith; instead, the clause is made up of six separate categories, each of which must be considered separately.  Justice Alito effectively uses the list structure to explode the abstract “whole” of the Establishment Clause and describe it as real spaces and events of the lived-in world—monuments, schools, churches, speech, and taxes, for example. By presenting the Establishment Clause as a collection of things, his opinion, then, can focus on just one of them.

Moreover, Justice Alito’s use of the list avoids the problem of creating a hierarchy of Establishment Clause categories; he does not need to explain to the reader how the categories relate to each other. While readers might infer a hierarchy or relationship between the categories, Justice Alito offers them a side-by-side equals, each apparently as important as any other, each distinct from any other.

What can we make of Justice Alito’s last and separate sentence that identifies a seventh “miscellaneous” category? This sentence, by its contrasting style, helps to show just how rhetorically effective Justice Alito’s six-part list is in avoiding hierarchy. By placing his seventh category in a separate sentence, he demotes it in relation to the other six thereby creating hierarchy.  (We could also imagine a situation where separating an item from a list in this way would promote it in a hierarchy; for example, Justice Alito might have used his final sentence to say something like, “A final category, category X, is the most important one of all.”)

So, in sum, understanding rhetorical ontology lets legal writers think about the rhetoric of the “things” we encounter in documents and to imagine those things as having their own persuasive features that pre-exist and guide our interactions with them. With respect to lists in legal writing, rhetorical ontology helps us see that a list’s rhetorical “thingness” includes

• Disjunction,
• Flattened hierarchy,
• Non-narrative structure,
• Unit (v. holistic) view,
• Juxtaposition, and
• Collocation.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. The views she expresses here are solely her own and not intended to be legal advice. You can reach her at kkdavis@law.stetson.edu.

Lists as Visual Rhetorical Strategy for Brief Writing: Set-Off and Stack-Up

Thursday’s Rhaw Bar:  A Little Bite of All Things Rhetoric and Law

Welcome to a new theme for posts on the Appellate Advocacy Blog: Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law. In this series, the Blog will explore ideas, theories, strategies, techniques, and critiques at the intersect of rhetoric and legal communication. Today we take a behind-the-scenes look at the rhetorical power of the “visual list” in brief writing.

In his excellent post a few weeks ago, professor and blogger Joe Regalia identified the myriad ways to use visuals in briefing, and he pointed out the “visual list” as a persuasive way to present information.  He noted that the technique is particularly effective for summarizing information.

The list is perhaps the original visual in brief writing—a writer can construct a list on manual typewriter or even with pen and paper; all one needs is the ability to indent, input text, and separate list items, such as with a number or icon (like a bullet point). But why does a list work as a visual as well as a textual persuasion device? In other words, if a reader never actually reads the text of a list, would the list still persuade? Does the list have rhetorical features as a “thing” unto itself, beyond the words that compose it?

As Professor Regalia’s post suggests, a list has a visual rhetorical effect all its own.  A list is effective as visual rhetoric because a list sets off and stacks up information.

1.    Lists visually set off information that the writer wants to mark as important.

Lists effectively use white space to set-off information, which shows its importance. Readers, even if they don’t consciously recognize it, use white space as a cue about how to respond to text. For example, think about paragraph breaks; the white space between two paragraphs and an indentation at the beginning of the first line of the second paragraph (which itself is a unit of white space) are cues to the reader that something important is happening—the new paragraph leaves behind the original topic and introduces a different topic. And the reader gets this information simply by skimming a page; the set-off is persuasive even before the reader actually reads the text content. (Try this yourself—take a look at the whole of a page of text—what does the white space say to you?)

The message of white space to set-off text is even more pronounced with lists, particularly when a list is indented from the left margin. When the reader encounters an indented list, the reader gets an immediate cue that something is special about the ideas captured in the list; the white space around it conveys that message. This white space says to the reader “Stop! Look here! This text is different from the rest of the information on this page. It is special, so pay extra attention.”  And this cue works to persuade even before the reader engages the list’s content.

2.    Lists stack up points of information to visually demonstrate weight or volume.

As a visual rhetorical tool, a list can have the effect of stacking up information to convey the weight or volume of the information presented. Think of a tower of kid’s building blocks. The taller the stack, the more impressive and memorable the tower for its sheer size alone. In the context of brief writing, then, a list can visually convey the strength of a point even before the reader reviews the list’s content. For example, take this list of triggers for using a graphic from Professor Regalia’s article:

• You have data—graphs nearly always make data easier to swallow than writing about the results.
• You want to make comparisons, connections, or contrasts between pieces of evidence or information. This is probably the most powerful, and least used tool. A simple table can drive home points like a party failing to submit any rebuttal evidence (one side of the table is your evidence, the other is their lack of it).
• You have a complex process to discuss—like an agency process, or a factual process that a party carried out.
• To show how a statute, regulation, or any other rule operates in steps.
• Any time you can use a chart to plot out a decision tree for your reader with the options laid out.
• Whenever you can come up with a visual that highlights key evidence or authority.

Now compare Professor Regalia’s same list, presented in paragraph form:

Here are some specific triggers when you might consider using a graphic:. You have data—graphs nearly always make data easier to swallow than writing about the results. You want to make comparisons, connections, or contrasts between pieces of evidence or information. This is probably the most powerful, and least used tool. A simple table can drive home points like a party failing to submit any rebuttal evidence (one side of the table is your evidence, the other is their lack of it). You have a complex process to discuss—like an agency process, or a factual process that a party carried out. To show how a statute, regulation, or any other rule operates in steps. Any time you can use a chart to plot out a decision tree for your reader with the options laid out. Whenever you can come up with a visual that highlights key evidence or authority.

Although the traditional paragraph contains the same information as the list, the paragraph makes less of a visual impact in conveying the number of situations where it would be appropriate for a writer to use a graphic in a brief. In the paragraph, the writer loses the visual impact of the “stacked” list, which, by virtue of the height of the stack, effectively conveys the many opportunities for brief writers to use graphics.

In the context of a brief, a list’s visual effectiveness in stacking up its content can prime the reader to understand the list’s content in the way the writer wants.  For example, in Professor Regalia’s list above, the reader who encounters this long list is primed to believe that the circumstances for graphic use are many. In the paragraph format, however, this “stacking” strategy is less effective; it is not as easy for the reader to see, before reading the paragraph in detail, that there are many opportunities for graphic use. (This comparison also suggests that if the writer wants to de-emphasize the weight or volume of information, the reader would not choose a list format and instead keep all of the information in a paragraph.)

If we go one more step and number the list items (i.e., 1., 2., 3., 4.), the list becomes even more visually persuasive because the reader is immediately cued to the size of the stack—six uses of graphics in briefs.

So, what do these two effects—set-off and stack-up—suggest for using lists? Consider formatting information into a list to accomplish these goals:

• To give the reader the visual impression that textual information is uniquely important and should be given special attention; or
• To show the reader—through formatting—that the items in your list are weighty, numerous, or otherwise substantial; or
• To accomplish both.

Kirsten Davis teaches at Stetson University College of Law in the Tampa Bay region of Florida. The views she expresses here are solely her own and not intended to be legal advice.  You may contact her at kkdavis@law.stetson.edu. 

Can Learning to Write Well Lead to More Ethical Behavior?

Last month, there was a short article in the Chronicle of Higher Education entitled "Why Writing Better Will Make You a Better Person." In the article, two professors of philosophy who teach ethics (Bob Fischer and Nathan Nobis) put forth the idea that good writing leads to more ethical behavior, because it involves several ethical ways of thinking. The article is linked here.

In their article, Fischer and Nobis suggest that writing is an ethical activity, and that becoming a better writer can make you a better person. In so arguing, they suggest several high-level ethical norms that should motivate good writing:

• Try to do good things and avoid causing bad ones. Writing causes feelings in the reader. We should try to cause good feelings and good consequences, and avoid causing bad ones.
• Respect everyone, including your readers, as inherently valuable and rational beings. Don't waste your reader's time. Respect them enough to be clear and concise.
• Follow the Golden Rule. Treat your reader as you would like to be treated yourself. If you like straightforward, well-referenced, well-organized text, provide it to your readers.

In the end, the authors conclude that good character traits should produce good writing. Empathy requires always considering others and their needs and points of view. Compassion means you don't make your writing any more difficult to read than need be. Honesty requires the full truth, including bad facts and opposing arguments. Humility requires acknowledging that those competing arguments might have merit.

Conversely, the authors suggest that practicing these traits to be a good writer will make the writer a better person. Studiously respecting the reader, considering the merit of opposing arguments, and so on will help strengthen the corresponding ethical traits in the life of the writer.

As lawyers, we often divorce ourselves from general rules of ethics and focus on our professional rules of responsibility. But even there, we have the same obligations to fulfill. Our obligations include a duty of competency that requires thoroughness and preparation, See Model Rules of Prof'l Conduct R. 1.1, and a duty of candor, to the court and third parties, that requires us to admit factual and legal weaknesses in our arguments. See Model Rules of Prof'l Conduct R. 3.3, 4.1. And as the preamble notes, while many of the Rules govern our conduct directly, "a lawyer is also guided by personal conscience and the approbation of professional peers."

Numerous studies demonstrate further that ethical writing is more persuasive and effective. Simpler writing is more easily understand and followed by the courts. Admitting weaknesses enhances credibility, which is the coin of persuasion, while sloppiness in research or citations to facts or the law expends that credibility without reason. Our duties of competence and candor, therefore, are best served by being ethical in our writing, which also leads to the best results for clients.

It makes sense that, over time, adherence to these obligations in our writing and other client representations leads to their refinement in our characters. Ethical writing strengthens behavioral muscle that can, and should, work out in our daily lives. Conversely, unethical writing may serve as a warning sign for issues in the personal lives of counsel.

Seen in this light, teaching good legal writing to our students and young lawyers is an exercise in both effectiveness and ethics. The earlier we can convince our young lawyers of this, the healthier the bar will become.

(Image Credit: AndreasPraefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908/.)

 

 

Conducting Moot Court in Real Appeals - Part 2

In my last entry, I gave an overview of how to set up a moot court session for your real appeal, including panelist selection, timing, and preparation. Today, I want to talk in more details about how to set up and conduct the moot court session itself.

1.     Plan Ahead and Be Respectful of your Panel's Time.

Making the most of this time is critical. You are either costing your panelists their time (if they have volunteered) or paying them for it, either in the form of a flat or hourly fee. Be respectful of that time. First, give them copies of the briefing and key cases or statutes far enough in advance that they can time-shift the work needed to be prepared for the session. Second, let them know your expectations for their participation at the session and the anticipated time involved.

2.    Establish a Format for the Session.

The latter bit of information will depend on whether you are going to have a “typical” session or add on time. The “typical” session that I recommend is in two parts. First there is a true “moot court” session, accurately emulating the anticipated oral argument. Second, the panel takes off the robes (literally or figuratively) and talks through their critique of the argument and the answers given. Give yourself time for your moot court (with or without opposing argument presented) and then, as a rule of thumb, at least double that time for the follow-up discussion. Encourage the panelists to raise issues or questions that might not have been brought up during the round.

You can add to this time if you wish. Some practitioners want to give the argument first without questions as a straight run-through, then have the panel hear the argument again and ask questions. I usually counsel against this, because it means your moot panel will have heard the argument much more clearly than your actual panel will.

If your panel has time, you may want to have an initial roundtable after the argument, then watch the video and see what other questions or comments are brought to mind when doing so. As mentioned in the earlier article, you might even want to have a separate brainstorming session before your response or reply are due, in order to flesh out issues during briefing instead of oral argument.

In my moot court coaching, I alternate between informal roundtable discussions, question and answer sessions, and argument. Over the years I have come to believe that it takes all three types of preparation, much like a sports team might have team meetings to discuss plays, conduct skill drills, and then play in scrimmages in order to prepare for a real game.

Whatever the plan is, make it explicit to the panel and be sure to prepare for each step. Do not underestimate the time for your panel if you want them to work with you again.

3.    Accurately Emulate the Oral Argument.

Next, pay attention to the actual setup of the moot court session. I prefer using as realistic a setup as possible. If you have never argued before a particular court before, find out what kind of timing mechanism is used and find one that matches it as closely as possible. If you are not familiar with timing lights, they can be very distracting and a bit confusing. To prepare, you can find timing lights on Amazon or other retailers. Practicing with the light will help you get a better feel for how to time your argument without fearing your first encounter with “the light.”

If possible, try to hold your moot session in a setting that emulates your oral argument environment. Many law schools have practice courtrooms, with some set up for appellate simulation. In a pinch, a conference room will work, but use a podium and have the panel sit together so you can get used to scanning for reaction. Teleconferencing is also an option if time or distance simply do not allow for everyone to be in the same room, but I don’t find it to be as accurate a simulation as other setups.

4.    Prepare Yourself and Your Panel.

When the date of the session arrives be sure that you and your panel are prepared. If you have selected former justices, appellate practitioners, or even former clerks for the court you are approaching, and have provided them with materials in time to prepare, they will be ready to serve as a general panel. If you receive a notice of panel change or setting, be sure to share that with them and discuss potentially doing additional research to emulate a particular justice on the panel, if that is the approach you wish to take.

Prior to the session, practice and refine your argument on your own, and work with potential Q&A that you and your colleagues may have developed. If you are a newer or infrequent advocate, and you are nervous about how to handle questions, one practice technique is to write down anticipated questions on note cards, give them a good shuffle, then start your “speech,” grabbing a card at intervals and responding to the questions while working back into the arguments.

Finally, watch oral arguments from your court, your panel members, and your opponent. The proliferation of online videotaped oral argument is a wonderful preparation tool.

5.     Enjoy the Conversation

The ultimate goal of all of this work is to make yourself comfortable with the subject matter, the format, and the environment to such an extent that you are able to engage in a meaningful conversation with your real panel. Only by working with a practice panel can you reassure yourself that your weaknesses have been fully probed, and only be simulating the experience accurately can you feel comfortable when you stand to speak. But don’t forget to enjoy the moment – oral argument is increasingly rare on appeal, and each time it is granted you are being given an opportunity to meaningfully collaborate with the court in properly developing the law in a setting that is meant to speak your sometimes dry legal arguments to life.

(Image credit: My furtive photo of an excellent simulation experience for two of my SMU Law School moot court students, Adrian Galvan (speaking) and Sydney Sadler (sitting to his left) at the final round of the TYLA Moot Court Competition earlier this month, where they were able to argue in front of all but one of the judges (that is the proper term for this court) from the Texas Court of Criminal Appeals.)

 

Getting to Know Your Audience

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:

• Westlaw Profiler
• Ravel Law
• League of Women Voters
• CourtListener
• Judgepedia
• Alliance for Justice (AFJ) Reports on the Judiciary
• The Robing Room

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)

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. 

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.

The high cost of contentious litigation

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).

When the law loses its way

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.”)