Appellate Advocacy Blog

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

Tuesday, October 29, 2019

Who Really Drives the Appellate Litigation Bus?

No offense to this blog’s readers, but appellate advocates in general are a narcissistic bunch. We like to think of ourselves as the drivers of legal change in our system. We assume that the arguments we present before appellate courts are the impetus for new opinions that will have far-reaching practical effects in law and society. I feel confident in ascribing this self-important attitude to appellate advocates because I held it dearly when I practiced as an appellate public defender. Nothing could be more meaningful, I assured myself, than a worthy struggle in the arena of ideas that is an appellate courtroom, with the eventual victor illuminating the legal path forward for decades.

When I began wearing an academic hat, I was forced to reexamine my assumptions about the role appellate advocates plays in shaping the law. And that reexamination was sobering. Our judicial system carries a deeply embedded faith in the procedural justice of adversarial litigation—the idea that when parties compete in a fair process for adjudicating disagreements, they will produce the most just results possible. But when I examined both my own experiences as an appellate clerk and the available data on high court adjudication, I was disappointed to realize how often judges themselves, rather than litigants, drive the outcomes in our supposedly adversarial courts.[1] Take the United States Supreme Court, for example. Supreme Court litigants and their attorneys play a diminishing role in actually shaping the direction of the law, while the “umpire” Justices themselves take greater control over the direction of jurisprudence. The Justices have lowered the demands of their discretionary dockets by consistently granting certiorari in fewer than 100 cases per year, while simultaneously increasing the length and originality of their opinions; their written work is both longer and contains less borrowed language from the parties’ briefs than ever before.[2] In those opinions, Justices themselves often participate in a kind of top-down lawmaking. An opinion in a case decided today often ghost-writes the brief the Justice would like to see presented in future appeals, allowing that Justice to shape the law according to their preferences in future case they have transparently invited litigants to file.[3]

Oral arguments are little different. For several decades preceding this term, oral arguments have left less and less space for the advocates themselves to shape opinions. Attorneys in the Supreme Court instead play the role of straight man in conversations dominated by the Justices, who appear disinterested in the responses from the lectern. In a comparison of oral arguments in the 1958–1960 Terms and the 2010–2012 Terms, Barry Sullivan and Megan Canty noted the myriad ways in which Justices have come to dominate the direction of oral argument over the last half-century, including an increase in the ratio of Justice-spoken words to advocate-spoken words, a near doubling of the average number of words spoken by the Justices per oral argument, and far shorter opening monologues by counsel.[4]

It was thus tempting to celebrate the Supreme Court’s recently-announced rule permitting the advocates approximately two minutes of uninterrupted monologue at the start of oral arguments. Perhaps this would mark a sea-change for appellate advocacy, revitalizing the role of advocates in Supreme Court litigation. Yet there is reason for hearty skepticism. Justices have long taken a guiding role in the direction of the law through use of the discretionary docket; invitations for specific arguments in future appeals; and techniques to slowly undermine, or even stealthily overrule, the reasoning in precedent cases.[5] The two-minute rule will not cabin any of those techniques that permit the Justices, rather than the litigants, to drive the appellate litigation bus.

One well-worn trope holds that cases are seldom won at oral argument, but can readily be lost if one is insufficiently prepared to defend their brief’s arguments against a barrage of troubling hypotheticals and slippery slopes. If anything, the new rule only erodes that trope at the very extreme margins. Advocates may have slightly greater opportunity, in increments usually measured by a kitchen timer, to shape the direction of the law in their presentation to high courts. But this offers little salve when the hypotheticals come cascading down, with little interruption for actual answers, during the bulk of the argument. For appellate advocacy to meaningfully change, and for advocates to play a more determinative role in shaping the law, the justices themselves must approach their job with greater humility, aspiring to resolve the controversies actually presented rather than those they have hoped to see and invited to come before them. Without that change in attitude and approach, the two-minute rule may be little more than a procedural fig-leaf from a court that has drifted further and further away from the judicial system’s adversarial ideals.

This is all not to say that appellate advocacy has lost its value in today’s world. Preparing for an appeal remains one of the most demanding, rewarding, and fruitful exercises any attorney or law student can undertake. Nothing helps an attorney refine their legal arguments more than planning for the crucible of hypotheticals they might face from a high court. And the history of our nation’s highest courts still suggests that some advocates, through either sheer intellectual brilliance or perfectly-timed moments of inspiration, play a guiding role in shaping the direction of the law. But a clear-eyed evaluation of the appellate advocacy process suggests that Justices are the real drivers of case outcomes. Of course, appellate attorneys must still ensure that their clients receive vociferous representation and a prepared, skilled advocate at the podium. But that podium’s power is limited, and it is not often the driver’s seat for appellate litigation.

 

[1] Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339 (2017).

[2] See, e.g., Ryan C. Black & James F. Spriggs II, An Empirical Analysis of the Length of U.S. Supreme Court Opinions, 45 Hous. L. Rev. 621, 630, 634–35 (2008); Adam Feldman, A Brief Assessment of Supreme Court Opinion Language, 1946–2013, 86 Miss. L.J. 105, 137 (2017).

[3] See Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341-43 (2017).

[4] Barry Sullivan & Megan Canty, Interruptions in Search of a Purpose: Oral Argument in the Supreme Court, October Terms 1958–60 and 2010–12, 2015 UTAH L. REV. 1005, 1042.

[5] See Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1 (2010).

October 29, 2019 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, October 15, 2019

Ethical Issues on Appeal

Have you thought about the ethical rules that apply to your role as appellate counsel? Ethical rules are probably not at the forefront of your mind when you handle an appeal, but the failure to consider and follow the ethical rules can have serious consequences for appellate clients and counsel. Here we’ll focus on three Model Rules of Professional Conduct that relate to one’s role as appellate counsel and survey instances when appellate counsel might have given more thought to these rules.

Model Rule 1.1: Competence:

A lawyer shall provide competent representation to a client. Competent representation requires the knowledge, skill, thoroughness[,] and preparation reasonably necessary for the representation.

Carlyle Shepperson was a Vermont attorney who was charged with violating DR 6-101(A)(1) and 6-101(A)(2), which were forerunners to Rule 1.1. In re Shepperson, 674 A.2d 1273, 1273 (Vt. 1996). A justice of the Vermont Supreme Court had referred Shepperson to the state disciplinary board over the quality of his work product. Id. Shepperson entered into a remedial stipulation and agreed that he would not practice law until he completed a legal writing tutorial to “develop skills in legal analysis, persuasive writing techniques, writing organization, [ ] use of legal authority, proper citation form, and proper formatting for memoranda and briefs.” Id. at 1273-74. Shepperson later told bar counsel that he would not complete the tutorial and that he had left the United States for an indefinite time. Id.

Bar counsel filed a petition of misconduct and Shepperson filed a response but didn’t appear at the disciplinary hearing. Id. The Board of Professional Conduct recommended that Shepperson be disbarred. Id. The board found that Shepperson’s briefs:

were generally incomprehensible, made arguments without explaining the claimed legal errors, presented no substantiated legal structure to the arguments, and devoted large portions of the narrative to irrelevant philosophical rhetoric. The briefs contained numerous citation errors that made identification of the cases difficult, cited cases for irrelevant or incomprehensible reasons, made legal arguments without citation to authority, and inaccurately represented the law contained in the cited cases.

Id.

The board found Shepperson’s briefs were not competently prepared and didn’t meet minimal standards of competence; that Shepperson didn’t adequately prepare his work or give his work appropriate attention; and that he didn’t properly protect his clients’ interests. Id.

The Supreme Court of Vermont agreed with the board’s findings but issued an indefinite suspension. Id. In doing so, the court noted that Shepperson’s brief in the disciplinary matter showed his deficiencies. Shepperson failed to raise a legitimate legal issue and he didn’t cite a single authority to support his arguments. Id. at 636. Instead, his brief was a “harangue against the legal system” claiming “that the Board and this Court have violated his freedoms of speech and religion and limited his ability to think in diverse ways by dictating what is and what is not a proper legal argument.” Id. The court found that while Shepperson was free to represent himself as he pleased, he could not be allowed to continue to represent clients in a way that failed to safeguard the clients’ interests. The court declined to disbar Shepperson but did suspend him indefinitely.

Appellate counsel also has a duty of candor toward the tribunal. Model Rule 3.3 says:

(a)     A lawyer shall not knowingly:

          ***

          (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel[.]

Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931 (7th Cir. 2011) shows the importance of compliance with this rule.

Gonzalez-Servin involved consolidated appeals from orders transferring cases to courts in Mexico and Israel under the doctrine of forum non conveniens. One case arose from accidents allegedly caused by defects in Bridgestone/Firestone tires installed on Ford vehicles in Latin America. Id. at 933. The other claims concerned contaminated blood products. Id. The Seventh Circuit began its opinion by noting that it had consolidated the cases because each raised “concerns about appellate advocacy.” Id.

In the tire-defect case, the Seventh Circuit found that appellants’ counsel failed to cite adverse Seventh Circuit precedent in either their opening brief or their reply brief, even though the appellees cited the controlling decision in their response brief. Id. The court took the appellants’ failure to cite, “let alone try to distinguish” the adverse case as “an implicit concession that the circumstances of that case [were] ‘nearly identical’ to those of the [tire-defect] case.” Id.

In the blood-products case, the appellants filed their opening brief and then the Seventh Circuit issued two decisions that were adverse to the appellants’ position. Id. at 934. Although the appellees’ brief relied heavily on the newly issued adverse authorities, the appellants’ reply brief discussed one of the adverse cases “a little” and the other “not at all.” Id.

The court admonished:

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don't know the thinking that led the appellants' counsel in these two cases to do that. But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.

Id. The court then said that “the ‘ostrich-like tactic of pretending that potentially dispositive adverse authority against a litigant does not exist is as unprofessional as it is pointless’” id. (quoting Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989)) and illustrated its point by including these photos in its opinion:

Ostrich

 

Id.

While appellants in those cases didn’t violate Model Rule 3.3(a)(2) (because opposing counsel had disclosed the adverse authority), the court’s opinion makes clear that the better approach is to cite the adverse authority and try to distinguish it.

Finally, appellate counsel must be mindful of Model Rule 8.2(a):

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer . . . .

Swinka Realty Investments LLC v. Lackawanna County Tax Claim Bureau, 688 Fed. Appx. 146 (3d Cir. 2017) (unpublished) and its aftermath show the importance of following Model Rule 8.2(a).

Swinka arose out of a claim that state officials had violated the Fifth and Fourteenth Amendments in a tax sale. Id. at 147. On appeal, Swinka’s brief included statements accusing the trial court of contradicting itself; intentionally overlooking genuine issues of fact; creating false analysis; lacking understanding of Pennsylvania tax law; misstating the status of the law; padding its opinion with citations to irrelevant cases; trying to deprive the appellant of its rights; and other types of inappropriate conduct. Id. at fn.2.

The Third Circuit emphasized that appellants’ counsel had an ethical duty to avoid making false or reckless statements about the qualifications or integrity of a judge. Id. at fn.3. The court affirmed the trial court’s decision and said:

Swinka’s brief repeatedly casts aspersions on the District Court’s analytical ability. The aspersions lack substance and utterly fail to advance Swinka’s legal arguments. As such, these unprofessional comments reflect poorly on Swinka’s counsel. When counsel wastes ink attacking the ability of able District Courts instead of advancing his or her client’s legal arguments, we smell more than a hint of desperation and confusion about how an appeal works. It is an unbecoming way to brief an appeal.

Id. at 148-49.

Swinka’s counsel was referred to his state’s disciplinary board and he received a public reprimand for violating Rule 8.2(a). http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/186DB2018-Vinsko.pdf?cb=1.

We must be aware of the Rules of Professional Conduct when we represent clients on appeal. We must be sure that we provide competent, zealous, representation in a way that respects the integrity of the courts and our profession.

October 15, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (1)

Tuesday, October 1, 2019

Unpublished Decisions in the Google era

    Teaching legal writing to first year law students can be humbling. Though the students are unfailingly enthusiastic and extremely trusting of my alleged expertise, occasionally an innocent question exposes just how little I really know about the law. One discussion that humbled me recently concerned the weight of authority. The concepts seem straightforward enough, and once students begin researching independently, they become keenly aware of the need to sort the seemingly infinite cases they can find by the weight they will carry for a hypothetical judge. But my students’ eyebrows rose when they learned that some court decisions, though readily available in a variety of online fora, are “unpublished,” and thus cannot be relied upon by advocates in future cases. And sadly, a legal writing professor assuring them “that’s just the way it is” provided cold comfort for 1Ls. So I wanted to take some time to think through just what does, or does not, justify keeping some decisions “unpublished” in the Google era.

    Appellate Courts have long relied upon unpublished decisions in a significant number of cases, with estimates suggesting that over 80% of federal appellate court decisions are unpublished.[1]  Unpublished decisions are designed to serve several straightforward goals. First, limiting the number of published opinions should simplify the legal research process for litigants; the fewer potentially relevant cases lawyers must sift through, the easier (and cheaper) litigation becomes. Second, limiting the number of published opinions should render appellate court judging more efficient. Judges can focus their energy on perfecting their opinions in the most complex cases on their dockets, while clerks can compose most of the details in the majority of unpublished decisions of the court.

    But these justifications are less compelling today, when nearly every document produced in appellate courts is readily available online. Even if litigators follow the letter of local rules against citation of unpublished decisions, they will often refer to the reasoning present in an unpublished decision to buttress their arguments. They may even be tempted to directly quote from an unpublished decision, then simply drop a footnote to acknowledge that the decision has no precedential value. The proliferation of unpublished decisions thus seems not to simplify the research process for litigants. Both parties feel obligated to sift through unpublished authorities to avoid yielding some advantage to their opponent. The distinction between published and unpublished decisions can even make the litigation process more complex. It forces litigants to first scour traditional and non-traditional resources to obtain digital copies of the supposedly “unpublished” decisions raising similar issues, then to assess the degree to which they should rely upon those decisions in their briefs. The reliance question is especially troublesome in appellate courts where the parties will not learn which panel of judges will hear the case, and thus cannot assess the unique views of the panel about arguments based upon unpublished decisions until well after the written briefs have been filed.

    Furthermore, the promised efficiency gains for appellate court judges seem far-fetched in the digital era. Judges are fully aware that unpublished decisions are just as readily available for the legal community to review, and criticize, as published ones. Judges must therefore exercise the same care in crafting those decisions as published opinions. Furthermore, the choice to qualify a decision as unpublished often signals the author’s lack of confidence in the outcome. It seemingly invites higher courts to closely examine, and perhaps overrule, those decisions.

    Perhaps all is not lost, though, for unpublished decisions if the rules that set out their use are modified to coincide with a different goal: streamlining litigation where some issues are so clear that no written decision is required. For example, perhaps appellate court rules could allow judges to enter a partial summary remand order addressing specific, clear errors, then retain jurisdiction in case any appellate issues remain viable following the remand. This would allow the court to explain that some issues are obvious enough to be addressed without a published decision, but retain jurisdiction to address more complex issues that may remain. Courts could also avoid issuing even an unpublished decision where the only issue raised is simple. Perhaps where error is clear, a per curiam order remanding without opinion at all is appropriate, both to quickly resolve the litigation and to avoid creating quasi-precedent that future litigants must research. Courts would need to avoid over-reliance on that method so that the reasons for their decisions are consistently publicized to litigants and the public, but the promise of streamlined litigation in many cases may be worth the risk.

    In lieu of those dramatic shifts, appellate courts could adopt a more subtle change to the rules for citing unpublished decisions. Appellate courts could expressly permit occasional citations to an unpublished decision, such as in cases where “no published opinion would serve as well to illustrate the argument of the parties.” Such a rule admittedly introduces a difficult standard for litigants and courts. But perhaps such candid acknowledgement that every decision is “published” in the Google era is worthwhile.

 

[1] “From 2000 to 2008, more than 81% of all opinions issued by the federal appellate courts were unpublished.” Aaron S. Bayer, Unpublished Appellate Opinions Are Still Commonplace, The National Law Journal, Aug. 24, 2009 (citing Judicial Business of the United States Courts: Annual Report of the Director, tbl. S3 (2000-2008)).

October 1, 2019 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts | Permalink | Comments (0)

Monday, September 23, 2019

We need more activist judges

Yes, the title of this blog is designed to raise eyebrows.  But no, I am not arguing for judicial activism as defined by the right or the left.  Rather, I am arguing for a court that takes an active role in legal education. We need judges--state and federal--who visit law school classes, speak at campus events, teach classes and seminars, take interns, and otherwise engage in legal education in their state.

Since moving to Arizona, I have been astounded at how involved that state and federal judges are at the state law schools.  For example, each academic year the state Supreme Court and the local appellate court hold arguments at the school where I teach.  The local appellate court also welcomes students in our brief-writing course to its courtroom each semester to give their final arguments, with all of the judges and many of the clerks and staff attorneys serving as judges for the arguments.

Current and retired appellate judges and justices teach courses at the law school. They also attend campus events, give lectures at orientation or to student groups, judge competitions, and attend social events.

While I see the state judges on campus the most, the federal bench is also active.  The federal judges are also good about judging competitions and speaking at or attending events.  They also take a lot of student interns, and I always hear from students about what a great opportunity it was to intern at federal court.

The advantages of an active, engaged bench are profound.

First, judges make great mentors and role models for the students.  Students are often more likely to listen to advice from judges, especially on topics like professionalism and civility, which are extremely important skills for students to learn.

Second, and related, judges reinforce what is said in the classroom.  I can count on one hand the number of times that I have heard a judge give advice on brief-writing, advocacy, or professionalism that I disagree with.  Generally, we are all on the same page, and, to the extent that we want to produce excellent future lawyers, we are all on the same team.

Third, our students are likely to give and do their best if a real judge is involved in an event or competition.  While some students still care about impressing professors, nearly all of them care about impressing judges.  They rightly see judges as a possible future employer and/or someone that they should try to impress.  

Finally, having judges involved gives faculty a break. I can judge arguments, competitions, speak at events, and socialize, but it is so nice to have local judges who are willing to step into that role.  Sometimes, after saying the same things over and over, we faculty members just need a break.  Thankfully, we have enough judges in Arizona who lend a helping hand that they can get a break too!

I want to thank all of the state and federal judges who devote so much time to making law school a better experience for students.  Your hard work does have an impact!

 

September 23, 2019 in Appellate Advocacy, Law School, Legal Profession, State Appeals Courts | Permalink | Comments (1)

Wednesday, July 31, 2019

Case Overload

I often talk to my writing and appellate advocacy students about their audience, the members of the court from which they are seeking relief. I have spent most of my career working for appellate courts and, so, having been the audience, I like to educate my students about the reader’s perspective. It is hard sometimes to grasp who your audience is, or how much attention the reader pays to legal motions, memoranda, and briefs. I confess that when I was a student I used to romanticize about my reader sitting in an overstuffed, leather chair in a dimly lit room slowly perusing briefs while sipping cognac. It never occurred to me that the sheer volume of work makes that picture a ridiculous fantasy.

Let’s talk about numbers. The United States Supreme Court website tells us that over 7,000 cases are filed in the Court each term, and that, of that number, about 80 receive plenary review, with another 100 disposed of without plenary review. The Court writes thousands of pages a term, if you count all the opinions and orders. See https://www.supremecourt.gov/about/courtatwork.aspx (last visited 7/23/2019). Imagine that! Even shared amongst all of the Justices, law clerks, clerks, and staff attorneys, the volume of written work in a term far exceed what most people will produce in a lifetime.

These numbers are just staggering. Imagine having to read just a fraction of the briefs and other legal documents filed in these cases. There is nothing romantic about it. But it is awe-inspiring to consider the dedication and sacrifice involved in devoting so much of time into the cares of the litigants and the future course of this country. The same can be said about every appellate court, where incoming cases can range from a few hundred in smaller states to more than 10,000 in the largest states each year.

See https://www.ncsc.org/Sitecore/Content/Microsites/PopUp/Home/CSP/CSP_AD_Overview

Keeping the sheer volume of cases in mind, over the next few weeks I will explore what we can do as appellate advocates to ease the burden.

July 31, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Friday, July 5, 2019

Appellate Advocacy Blog Weekly Roundup Friday, July 5

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

 

Supreme Court Opinions and News:

@Steven Mazie had an article in the Economist this week reviewing the past term of the Court, its movement to the right, and the emerging political alignment of Justices Kavanaugh and Gorsuch.

The New Yorker had an article this week addressing how the Court’s recent decision in Gundy v. United States  likely foreshadows a shift in the Court’s position with regard to allowing Congress to broadly delegate authority to agencies.  Gundy involved a challenge to Congress’ delegation to the Attorney General the decision of whether mandatory registration requirements under the Sex Offender Registration Act apply to individuals who were convicted prior to the Act’s passage.  Gundy is such a defendant, did not register, and was charged and convicted as a result.  He challenged Congress’ delegation as impermissible.  As the article notes, the Court has long allowed Congress broad authority to make such delegations.  In Gundy’s case, the Court was divided with the four more liberal Justices voting to continue allowing delegation, three more conservative Justices voting to deviate from prior law, and Justice Alito siding with the more liberal Justices but explicitly indicating that if a majority of the Court was inclined to change the law, he’d be on board.  The decision in Gundy strongly suggests that the next case to raise the issue to the Court will likely be decided differently because Justice Kavanaugh had not yet been confirmed when it was argued and did not participate.  The article notes that changing this practice of delegation may result in wide sweeping changes to federal government, as a substantial amount of federal law currently depends heavily on such delegations to agencies.

FiveThirtyEight.com had an article this week reviewing the voting habits of the members of the Court (especially the conservative members) since the retirement of “swing vote” Justice Kennedy.  The article suggested that the Court could be viewed now as having three swing Justices, depending on the issues presented – Justice Gorsuch joined the more liberal members of the Court in more closely divided cases than any of the other more conservative Justices, while Justice Roberts provided the decisive vote on the recent census case.  Additionally, the early voting trends suggest that Justice Kavanaugh is likely the current “middle” of the Court, pushing it more conservative even while he seems to be more ideologically moderate than Justice Gorsuch.

The ABA Journal took a look this week at Justice Thomas' 30 year career on the Court, emphasizing his enigmatic persona -- "supporters and detractors are still debating who he really is."  He's now the longest-serving member of the Court and the senior associate Justice.  On the bench, he's known for rarely speaking; off the bench, he's known for being quite jovial and chatty. 

 

Federal Appellate Court Opinions and News:

In the Third Circuit Court of Appeals, Amazon was held strictly liable for injuries caused by defective products sold by other vendors on its website.  The case was Oberdorf v. Amazon.com.  More from the CA3blog.

 

State Appellate Court Opinions and News:

The Iowa Court of Appeals this week reversed a jury's decision that had awarded an Iowa couple $3.25 million after they claimed their adoption attorney failed to file paperwork on time and lead to them losing the child they planned to adopt.  The couple cared for the boy for a few months, but were then required to return him to his biological parents after the couple's attorney did not have the biological parents sign termination of parental rights documents.  The child died from severe head injuries a month later, and the biological father was convicted of second-degree murder.  In reversing the malpractice damage award, the appellate court concluded that the couple had failed to show that the attorney engaged in illegitimate conduct especially likely to produce serious emotional harm and had not show that he had a duty to exercise care to avoid causing emotional harm.  More here.

 

Practice Tips and Pointers:

#AppellateTwitter discussion this week on Twitter addressed lawyers and social media – many good thoughts throughout the Twitter thread started by @RachelGurvich  right here.

July 5, 2019 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, State Appeals Courts, United States Supreme Court, Weblogs | Permalink | Comments (1)

Monday, June 17, 2019

Tips for Securing an Appellate Clerkship

While we often post on this blog about appellate practice, I thought that I would take a small detour of sorts and post about how to secure an appellate clerkship.  A state or federal appellate clerkship is an excellent stepping stone to an appellate career.  But how do you secure an appellate clerkship?  Although the easiest route to a federal appellate clerkship is to attend a top 5 law school and receive top grades (or lots of high-passes), there are plenty of opportunities for students at non-top 5 law schools to secure clerkships. 

(1) Get good grades:  Regardless of where you attend law school, getting good grades and being ranked in the top 5% or 10% of your class is pretty important.  If you are seeking a federal appellate clerkship from a lower-ranked school, you probably need to be in the top 5% of your graduating class.  Students who aren't ranked in the top 5% but who want to do a federal appellate clerkship should consider starting with a federal district or magistrate clerkship or clerking first at the state supreme court or intermediate appellate court level.

(2) Be on a journal: For many judges it is important for applicants to have journal experience.  Much of the work that appellate law clerks do mirrors journal work.  For some judges, high level moot court experience could replace journal experience.  

(3) Get to know your professors: I have heard from people in the know (judges or their career clerks) that strong letters of recommendation are helpful for securing clerkships.  So, you need to get to know your professors well enough for them to write good letters. One way to do this is to visit office hours or to serve as a research assistant for a professor.  And, in asking professors to write letters, pick the professor who knows you the best, not the professor who is most well-known in academia. If you are particularly well-connected to a professor, that professor might have personal connections with judges and be willing to send a direct email or make a phone call on your behalf. I have done this for students, and I have also connected prospective applicants with friends who have clerked for judges.

(4) Get to know judges: Interning or externing for a judge can be a great segue into a clerkship. You get to know that particular and often the others in the courthouse.  You can see what the judges do, and hopefully end the experience with a great recommendation.  Another way to meet the local judges is to participate in local lawyer activities, like the local bar association, the Federal Bar Association, or legal-organizations like the Federalist Society or the American Constitution Society.  Most of these organizations offer very cheap student memberships, and many local state and federal judges actively participate in these organizations.

(5) Find a connection: Apply to judges with whom you share some sort of connections. Perhaps you went to the same undergraduate institution or law school. Maybe you were both in the girl scouts or some other organization. Maybe you both grew up in the same town.  Find those judges, apply to them, and mention the connection in your cover letter.

(6) Work your way up: When I graduated from law school almost 15 years ago (yikes, I feel old), it was the norm to go straight to a federal appellate clerkship.  That is no longer the case.  Even students from top 5 law schools often stack clerkships--starting with a federal district or magistrate clerkship and moving their way up to a federal appellate or state supreme court clerkship.  If you are interested in clerking at the state level, you could certainly stack a state intermediate appellate clerkship and a state supreme court clerkship.  I also know of a student who went from the state supreme court to the federal district court.  The point is to be creative! If you view each clerkship as a learning opportunity, stacking clerkships just gives you more time to learn.

(7) Don't forget the state courts: If you want to have a predominantly state practice, you should consider a state court clerkship. I believe that the value of a clerkships lies in the experience and mentoring that you receive.  I have met many a state court judge who is better equipped to do this than some federal judges.  So, even though some people might not consider state clerkships to be as prestigious, I would encourage you to consider applying for one, especially if you think that the judge would be an excellent mentor.

(8) Start thinking about a clerkship early: Finally, I would recommend that you start thinking about a clerkship early in your legal education. This allows you to form relationships with professors, request letters of recommendation, apply for internships, and get on a journal. If you aren't sure if you want to clerk, stop by a professor's office to ask about her clerkship experience.  Or, try working for a judge your first summer out of law school.  That experience should help you know a little bit what a clerkship would be like.

Good luck to all of the students applying for clerkships right now!

 

June 17, 2019 in Appellate Practice, Law School, Legal Profession, State Appeals Courts | Permalink | Comments (0)

Tuesday, May 28, 2019

Getting to Know Your Audience

Lets harmonize

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

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

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

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

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

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

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

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

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

Tuesday, April 30, 2019

The Ongoing Experiment of State Judicial Selection

Nast Aug 7 1875

In my last article I commented briefly on the political history of the selection and number of justices on the Supreme Court of the United States. As I was writing that piece, a committee was taking testimony in the Texas legislature on a bill attempting to change the Texas judicial selection process. While federal judicial selection is largely a set process, the method of selection of state judges is an experiment in democracy that continues to change today.

Prior to the mid-1800s, most states selected their judges in a way that mirrored the federal system – gubernatorial appointment with legislative confirmation - with a minority of states using direct legislative selection. The Jacksonian era saw a renewed concern with accountability and public participation, and this led to rapid change. In 1832, Mississippi became the first state to switch to a popular election for judges. After a few years of observation, New York and several other states followed suit. By 1861, 24 of the 34 states used the new election system.

There have been several experiments since. Nonpartisan elections were used by 12 states in 1927. Since 1940, over thirty states have adopted some form a system of appointments (either solely gubernatorial or gubernatorial selection from a merits-based nomination system, which is called the “Missouri plan”) with nonpartisan retention elections. Today, only ten states use some kind of partisan election process to select their high court justices, and only five states rely solely on partisan elections.

My home state of Texas is one of them. In the most recent election cycle, for reasons that political wonks can (and do) argue about endlessly, this resulted in a seismic shift on the bench. 35% of all intermediate appellate justices were replaced. One-fourth of all trial judges, at all levels, were also replaced. Four of the largest state appeals courts flipped along partisan lines. By one count, over 700 years of judicial experience were removed from the bench.

The response has been a re-evaluation of the method the State uses for judicial selection. Official committees have been formed to re-evaluate judicial selection and qualification, and there has been vigorous debate over the pros and cons of each system.

The hearing on HB 4504, proposing a new judicial appointment and retention vote system (similar to the "Missouri plan"), covered the gambit of options and perils. Chief Justice Nathan Hecht framed the discussion in terms of the inherent conflict between impartiality and accountability. To be truly impartial, judges must be free of outside influence. At the same time, there must be some accountability for their stewardship of power. But if a judge rules contrary to popular opinion in order to remain impartial, yet is subject to removal through election by that same population, this balance is imperiled.

Calling partisan election an “utter failure,” Hecht opined that partisan election often means there is no true accountability for judges, since the focus is on partisan affiliation rather than performance. He also warned against the risk to impartiality in such a system:

If you want judges who rule in favor of the Republicans or Democrats, in favor of the left or the right, in favor of the establishment or the outsiders, in favor of the rich or the poor, then we should keep partisan judicial elections. But be clear - today, tomorrow, or the day after, the powerful will win that struggle.

Former Chief Justice Wallace Jefferson, the first African American member of the Supreme Court of Texas, while supporting the system, acknowledged that any system needs to increase diversity on the bench, and briefly discussed the impact of implicit biases based on different life experience. Former Chief Justice Tom Philips also supported the bill, asserting that for the vast majority of judges, the partisan label is meaningless, because they seek to serve the people and follow the law. Partisan labels, however, serve to undermine faith in their decision-making. Other practitioners spoke out against partisan elections because the cost in terms of the loss of judicial experience is too high when those elections result in sweeps, and because the system prevents some well-qualified candidates from ever running.

Speaking against the bill, Judge Eric Moyé, a longtime Dallas District Court judge, started with a reference to the importance of local government and local citizen control. Noting that judges are the most direct contact most citizens have with government, Moyé expressed his concern than any appointment process would bypass citizen control. Gloria Leal from the Mexican American Bar Association also testified against the bill, noting that 39% of the Texas population was Hispanic, a proportion that was not reflected on the bench (by my quick calculation of data from the Texas Office of Court Administration published on September 1, 2018, about 17% of the bench is Hispanic), and that popular election was the best way to reach a bench composition that matched the population.

In short, the testimony largely fell along the lines of the tension recognized by Justice Hecht – impartiality versus accountability. This balance was one of the many areas that Hamilton and Jefferson (as well as Madison) disagreed upon, with Hamilton arguing for a truly independent judiciary in Federalist 78, while Jefferson was primarily concerned that the judiciary remain accountable to the people through elections. Over the years, the various states have experimented with numerous ways to maintain that balance.

As an appellate practitioner who appears in different jurisdictions, I can say that by-and-large, these various systems get it right. The professionalism and integrity of our judges is, in fact, remarkable, given the various selection processes and pressures to which they find themselves subjected. This continued discussion, though, is important to ensuring that this remains the case. Only so long as the judiciary remains both impartial and accountable, through whatever procedures and safeguards we can refine, can we ensure a healthy system with judges who are qualified and willing to serve.

(Image credit: Thomas Nast’s cartoon “Princip-als, Not Men – A Lawyer Pleading for his “Client,” Harper’s Weekly, August 7, 1875, showing Nast’s fear that wealth was influencing the bench in its decisions regarding Tammany Hall. The sign on the bar is a quote from King Lear: “Plate sin with gold, and the strong lance of justice hurtless breaks. Arm it in rags, a pigmy’s straw doth pierce it.”).

April 30, 2019 in Appellate Court Reform, Appellate Justice, Current Affairs, Legal Ethics, Legal Profession, State Appeals Courts | Permalink | Comments (0)

Monday, April 1, 2019

Using the Ruth Bader Ginsburg strategy in Termination of Parental Rights Appeals

If you weren't a fan before  "On the Basis of Sex" was released in December 2018, or before the RBG documentary came out in May 2018, or before  My Own Words was published in October 2016, by now we all know how Ruth Bader Ginsburg did it.   As explained here, she started from zero, when the Supreme Court had never invalidated any type of sex-based law, and had rejected every challenge to laws treating men and women differently.  "By carving out incremental spaces for women (and men), over time Ginsburg established a bedrock of precedent that legal minds still reference in the fight for equality." One case at a time, she managed to change the court's perspective on sex discrimination: "Ginsburg’s precedents were compounding, as she helped American law move toward a world in which gender was no excuse for treating people differently."

A dear friend and colleague who works exclusively in the juvenile court system here in Missouri recently asked me to join her on her quest to follow the RBG Method in termination of parental rights cases.  I thought well, Justice Ginsburg was once upon a time an attorney with a strategy.  Here's the plan; apply it as you see fit. 

I.     Identify a current law, the prevailing interpretation of which you want to change.  

Termination of Parental Rights in Missouri is purely statutory.  The statute itself is long, complicated, and detailed.   One of the following grounds for termination without consent of the parent must be proved by "clear, cogent and convincing evidence": (1) abandonment; (2) abuse or neglect; (3) the child has been under the jurisdiction of the juvenile court for at least one year, and the conditions which led to the assumption of jurisdiction still persist; (4) the parent is guilty of a felony violation in which the child or any other child in the family was a victim; (5) the child was conceived as a result of rape;  or (6) the parent is unfit to be a party to the "parent-child relationship."  Each of these grounds requires a showing of specific facts and circumstances that constitute "clear, cogent and convincing evidence."  Second, the statute requires proof by a preponderance of the evidence that termination is "in the best interests of the child."  Given this level of detail and box-checking involved, your average bear might think that TPR cases leave little room for judicial discretion, and require strict and literal compliance with the statute. 

But in 2016, the Jackson County, Missouri Family Court developed a problem.  In the years 2010 through 2015, an average of 138 new termination of parental rights cases were filed.  In 2016, that number jumped to 449, because "in the Fall of 2015, the Juvenile Officer identified a number of cases with a goal of TPR lacking a petition for termination.  A special work plan was constructed and these cases were filed in 2016, resulting in an unusually high number of TPR petitions filed."  In 2017, 369 new TPR cases were filed, down by 80 from the prior year, but still over 2.5 times the average of the six years prior to 2016.  In  August 2016, the Family Court Division of Jackson County issued an administrative order implementing a case management system for TPR cases, "to create a more efficient, predictable system in order to achieve more timely case dispositions, reduced waiting times and more meaningful appearances for litigants, attorneys, and the Court, thereby promoting the timely administration of justice."   The new system requires that a Permanency Hearing take place within 12 months of the child coming under the court's jurisdiction, where the court may determine whether the Children's Division provided a compelling reason that a TPR petition is not in the best interests of the child.  A post-permanency plan review hearing must be held no later than six months after the Permanency Hearing, and if the court determines that the permanency plan is termination of parental rights, the court "shall order the Juvenile Officer or Children's Division to file a Petition for Termination of Parental Rights" within 90 days.  Then, the case must be docketed no later than 30 days after the TPR Petition is filed; and the court may appoint an attorney to a party who is financially unable to hire an attorney.  If TPR is contested, the case will be scheduled "for final trial/disposition within nine months after the case is transferred. . . ."  No continuances shall be granted "except for compelling cause." 

The end result of this new efficient case management system, according to my colleague, is a TPR Factory.  Cases are rushed through the court system, and  Judgments more often than not terminate parents' rights, but without proof of grounds by "clear and convincing evidence," and without proof by a preponderance of the evidence that termination of a parent's rights is in the best interests of the child.  So, how to fix it?

II.   Find a case with really good facts that emphasize the inherent merit in your argument, and bring them to the appellate court's attention.

If a parent has abandoned a child, that parent may repent his or her abandonment, which is determined by a parent's intent, which in turn is decided by the court's review of "actual or attempted exercise of parental rights and performance of parental duties following the abandonment."  However, I have yet to find any recent TPR cases, where the court examined the parent's behavior both prior to and after the filing of the TPR Petition, and determined that the parent's rights should not be terminated because the parent has "repented his or her abandonment."  Rather, the trial courts appear to consider behavior that occurred after the Petition was filed as "token" efforts, and view "after the fact" correspondences between the parent and child "with great hesitancy." My colleague seeks to change this interpretation of the statute, which she believes permits courts to terminate parents' rights without clear, cogent, and convincing evidence.   

V. W.  spent many years in active drug addiction, and did not deny that she had previously abandoned her child, who was taken into custody at birth when he tested positive for illegal substances.  After the child was taken into custody, V.W. never provided  any financial support for the child, and the court  entered a no-contact order.  After the TPR petition was filed, V.W. found out she was pregnant again, and decided that to turn her life around.  Over the next two years, V.W. participated in every service offered to her, stopped using drugs, moved into a halfway house, finished her education, got a job working in the addiction field, and gave birth to and parented the second child.  No witnesses at trial recommended termination regarding the first child; but her rights were terminated regardless.  On appeal, the Court of Appeals found among other things, V.W. had not repented her abandonment, because the evidence showed only "short-term improvements" which occurred after the filing of the termination petition.

We lost that one. 

III. Find a case with even better facts and try again. 

 J.C. had not participated in the case when his child first came under the juvenile court's jurisdiction.  He became involved in the case five months before the TPR Petition was filed.  Per the social services plan, J.C. attended and completed a batterer's intervention course, paid child support, and visited the child regularly.  He found employment and an appropriate place to live, and again no witnesses testified that his rights should have been terminated.  Nevertheless, the court found that because "almost all of the father's actions that might lend some support to a finding that he has repented his earlier abandonment of the child have come after" the petition was filed; these actions deserved “little weight."  The trial court terminated J.C.'s rights.  

We filed the brief in that appeal last month.  Hopefully, maybe this time with slightly different facts--the main difference in this case being the father's payment of child support and visits with the child--the court of appeals will see the worthiness of our argument that a parent's efforts to repent abandonment after the Petition is filed, should not be automatically viewed as token efforts deserving of little weight in a court's decision to terminate a parent's rights.  Interestingly, my colleague was chatting with an appellate judge recently, who told her that he just didn't see very many TPR appeals.   

What that tells me, is that a court's traditional understanding of a legal issue will change only if someone challenges the validity of that traditional understanding.  We know that the Supreme Court just hadn't considered that gender-based discrimination was wrong, so one case at a time, Ruth Bader Ginsburg methodically changed that thinking.   We may not be arguing in front of the Supreme Court, but here in this pond, my fellow fish and I are working towards the appellate court's coming around to the idea that perhaps there is something wrong with the way this state determines whether and when parents should lose their parental rights. 

The viewpoint is perhaps idealistic, but the goal feels possibly reachable.  Tally-ho. 

 

April 1, 2019 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Saturday, February 16, 2019

Keep it Simple: Using Your Brief to Educate

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, February 8, 2019

Appellate Advocacy Blog Weekly Roundup February 8, 2019

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

 

Supreme Court Opinions and News:

The Supreme Court voted this week by a 5-4 margin to a Louisiana abortion law from going into effect pending appeal.  The law would have required abortion providers in Louisiana to have admitting privileges at nearby hospitals.  Justice Kavanaugh filed a dissent.  The Court's vote likely signals that the Court will hear the case during its next term.

Justice Ginsburg made her first public appearance since her recent hospitalization for cancer surgery, appearing Monday night at an event at the National Museum for Women in the Arts in Washington, D.C.

      

Federal Appellate Court Opinions and News:

Fifth Circuit Court of Appeals Judge James Ho authored a dissent this week in which he concluded that Title VII prohibitions on sex discrimination do not extend to prohibit discrimination against LGBT workers.

 

State Appellate Court Opinions and News:

In Texas, the chief justice of the Texas Supreme Court called this week for the state to do away with its system of electing judges by political party when he gave an annual speech to the state's legislature.

 

Practice Pointers:

The ABA's Council of Appellate Lawyers publication Appellate Issues is out with its January issue.  The issue features articles about the programming during the 2018 Appellate Judges Education Institute Summit from last November.

On #AppellateTwitter this week, Ross Guberman noted an interesting split between appellate attorneys writing "this appeal presents the issue whether a court . . ." vs. ". . . the issue of whether a court . . ."
     

February 8, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Monday, February 4, 2019

Tools for Scoping out the Court

When you are writing an appellate brief or preparing for an oral argument, it is important to keep your audience in mind--the judges (and, let's be real, their clerks).  You don't write to impress your client, your boss, our your mom--you write to impress the judges and to get them to decide the case in favor of your client (which will, of course, impress your client, your boss, and your mom).  Part of writing for judges means knowing what they want.  So, how do you figure that out?  Well, for starters, you know that they want shorter briefs.  In surveying judges for the third edition of Winning on Appeal, we found that judges overwhelmingly think that briefs are too long.  It is the single issue that all judges seemed to agree on.  Apart from that, it can be helpful to research the judge or judges that you are appearing before to get an idea of what that judge wants.  

How do you research them?  Apart from talking to others that have appeared before the same court and judges, there are now some really great computer based tools to help.  Today I would like to talk about two such sources.

The first source is Context from Lexis Advance. You can read the Lexis marketing materials on it here.  For those of you who are real research nerds (like me), you might better know Context as Ravel's Judge Analytics.  Lexis acquired Ravel a year or two ago, and they are continuing to integrate all the cool Ravel computer stuff into Lexis.  What can Context tell you about a judge?  Well, a lot.  In addition to a short bio, you can find that judge's opinions by areas of the law.  You can see how the judge rules on particular types of motions (trial judges), and you can see what opinions that judge frequently cites to (and what judges).  For example, I searched for the late  Justice Scalia.  I found that his most cited case was Chevron. Context even shows me the parts of the opinion that he most frequently cited to. His most cited judge was Justice Byron White, followed by Justice Rehnquist and then himself.

Westlaw Next or Edge or whatever we call it now just rolled out a similar product--Litigation Analytics.  You can read the Westlaw marketing materials here.  Their product seems to have more options (you can search law firms too).  I searched for Justice Scalia on Litigation Analytics to see how the results differed.  Litigation Analytics has a nice, comprehensive biography of Justice Scalia's career.  According to Litigation Analytics, Justice Scalia cited to himself most often, followed by Justices Kennedy and O'Connor.  His most often cited case was Payne v. Tennessee.  I am not sure what accounts for the differences between the two services, but it might that one includes Justice Scalia's D.C. Circuit service and the other doesn't.

I think that both resources provide valuable insight into anyone writing an appellate brief (or preparing for oral argument).  Both services include local judges--I looked up by name a local Pima County Superior Court judge and he was there. 

But, apart from their usefulness to appellate attorneys, the services provide another valuable role.  They are excellent for law students who might be interested in interning or clerking for a judge.  You could get a wealth of knowledge about a particular individual before you step into that interview.  I plan on encouraging my students to consult one or the other as they work on their clerkship applications.

February 4, 2019 in Appellate Advocacy, Federal Appeals Courts, Law School, State Appeals Courts | Permalink | Comments (0)

Friday, January 25, 2019

Appellate Advocacy Blog Weekly Roundup January 25, 2019

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

Supreme Court News and Opinions:

The Supreme Court is out of session for a few weeks, now that the January sitting is over, although this week saw the issuance of some orders and decisions from last week's conference.

The Washington Post reported earlier this week about how the Court has maintained a relatively "low-key term," delaying taking up a variety of divisive issues such as immigration, abortion, and sexual orientation and gender identity, while also signaling some interest in other controversial topics like transgender service in the military and the Second Amendment.  CNN had a similar story.

Earlier this week, over the objection of the four more liberal members of the Court, the Justices allowed the Trump Administration's ban on transgender members serving in the military to go into effect while the issue is litigated in lower courts.  MSNBC had a report.  CNN also reported, noting the impact the Court might have upon the 2020 Presidential election.

On Tuesday, the Court granted cert in a case involving a challenge to New York City's limits on transporting personal firearms, bringing an opportunity for the Court to provide clarity on its Second Amendment jurisprudence.  With the shifting makeup of the Court now leaning more conservative, there is speculation that the Court will create a test for handgun restrictions that invalidates many local laws.  The case is New York State Rifle & Pistol Association Inc. v. City of New York. More about the case and what the eventual ruling  might  mean for the Second Amendment and gun regulations from the Atlantic and National Review.

Federal Appellate Court News and Opinions:

The Eighth Circuit Court of Appeals recently issued a decision in a case that provided some discussion of interest to appellate advocates concerning the procedural distinction between an appeal from a decision granting summary  judgment and a decision denying a motion for reconsideration and the respective standards of review.  The case is SPV-LS, LLC v. Transamerica Life Insurance Company.  Thanks to reader Ben Rand of Harris Beach for the tip about this opinion.  According to Rand (quoting one of the firm's attorneys): "The court focused procedurally on the appellant's efforts to conflate [the decision granting summary judgment and the decision denying reconsideration and the respective standards of review], and the Eighth Circuit carefully distinguished between the separate and distinct standards of review. If there were doubts in the Eighth Circuit regarding these concepts and related standards of review, the Eighth Circuit laid them to rest in this decision."

State Appellate Court News and Opinions:

The Arizona Supreme Court was scheduled this week to hear arguments in a case concerning how far business owners can go in refusing to serve customers because of their sexual orientation.  The case presents the question of whether the owners of a business can refuse to use their talents to design custom wedding invitations and other materials if the couple is of the same gender or whether they are required to serve the couple under a city of Phoenix ordinance barring places of public accommodation from sexual orientation discrimination.  More from Tucson.com. 

Practice Pointers:

Law.com had an article this week feature #AppellateTwitter's Neal Katyal and discussing how he handles juggling multiple and back-to-back appellate arguments.

Appellate Twitter's Matthew Stiegler had a blog post this week providing advice to lawyers preparing for their first-ever oral argument.

Appellate Job Postings:

The Constitutional Accountability Center has a posting for an Appellate Counsel position.

The California Office of the Attorney General has a posting for a Solicitor General position.

January 25, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, January 11, 2019

Appellate Advocacy Blog Weekly Roundup Friday, January 11

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

The Supreme Court heard arguments this week in Franchise Tax Board of California v. Hyatt.  The case, in which microchip inventor and multimillionaire Gilbert Hyatt alleged that a California tax board investigator had harassed him by peering through his windows and examining his trash, has been before the Court before. In 2003, the Court denied immunity to California’s Franchise Tax Board.  In 2016, the case was before the Court again, and at that time the Court split 4-4 on the question of whether to overrule Nevada v. Hall, a precedent that allows one state (and its agencies) to be sued in another state’s courts.  After a remand on damages, the case is now back, and with a full number of Justices, the Court will this time answer the question of whether to continue the precedent of Nevada v. Hall or overrule it.  Aside from the specific issue of states being sued in other states' courts, the case also holds implications for how the current makeup of the Court views precedent and the advisability of overruling it.

Read More:

This week’s SCOTUS101 podcast featured discussion about Justice Ginsburg’s absence from oral argument, Justice Kavanaugh’s first opinion, and an interview with #AppellateTwitter’s Sean Marotta.

Listen:

This week’s practice pointers come courtesy of the 2018 edition of the Georgia Bar Journal, in which #AppellateTwitter’s Chief Judge Dillard of the Georgia Court of Appeals was interviewed.  Tessa talked about it at length in her post on this blog earlier this week.

Read More:

January 11, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, November 2, 2018

Appellate Advocacy Blog Weekly Roundup Friday, November 2

 

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

 

Supreme Court Opinions and News:

The Supreme Court has proposed a number of revisions to the Court’s Rules and has invited public comment.  Among the highlights are proposals to lower the maximum word count on merit briefs and tighten filing deadlines.  See more HERE.  

This week the Court denied entry to court to a tribal leader wearing a headdress, making headlines.   Read the story HERE.  The tribal leader, Yakama Nation Tribal Council Chairman JoDe Goudy, was attempting to enter court to hear arguments involving a treaty between his tribe and the federal government, and he insisted on wearing his tribal regalia.  Representatives of the Court indicated that Goudy had been notified ahead of time that head coverings are only permitted in the courtroom for religious or medical reasons.

Justice Sandra Day O’Connor’s announcement that she is withdrawing from public life in the wake of early onset dementia continues to ripple through the legal community; her impact on the American legal landscape really can’t be overstated.  The Washington Post had this opinion piece.  

 

State Appellate Court Opinions and News:

On Thursday this week, the Nebraska Supreme Court heard oral argument in a case involving the Keystone XL Pipeline.  A link to video stream is available HERE

State courts involved in impeachment battles may mark a worrying new trend to challenge judicial independence and legitimacy:  Story HERE.

November 2, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, October 25, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, September 27, 2018

Thinking Thursdays: Using Screenwriting Techniques to Tell More Compelling Stories

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

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Storytelling is an integral part of a lawyer’s work, particularly for appellate lawyers. One critical aspect of effective storytelling is structure—and when it comes to structuring an effective story, lawyers can learn a little something from screenwriters.

In Teresa Bruce’s forthcoming article in the Journal of Legal Writing Institute, The Architecture of Drama: How Lawyers Can Use Screenwriting Techniques to Tell More Compelling Stories, Professor Bruce proposes that “lawyers build their stories in the same way Hollywood writers do.” Just as screenwriters follow a formula, lawyers should do the same: as IRAC is to argument sections, SCOR is to fact sections.

Professor Bruce’s article builds on existing storytelling literature, which approaches narrative theory from several different perspectives. The structural perspective uses a pragmatic or pedagogical approach, arguing that “[a] large part of telling an effective story is the order in which the reader presents information.”[i] Scholars in this area argue that an effective story structure helps judges and juries understand and remember information, and the story that flows most logically will be the story that seems most probable. As a result, good story structure can increase a client’s chance of winning.

Professor Bruce’s article takes the structural approach to narrative theory a step further by introducing the SCOR structure. Many lawyers will be familiar with the writing stages identified by Professor Betty Flowers: Madman, Architect, Carpenter, Judge. The Architect stage is where writers focus on “large, organizational, paragraph-level thinking.” The SCOR template gives writers a “flexible, generally applicable template they can use each time they tackle a new case.” This enables “lawyers to skip the Architecture stage entirely when writing a facts section (as IRAC enables them to do when writing an argument section).” Ultimately, Professor Bruce’s hope is that using SCOR will make it easier for lawyers to write their clients’ stories more coherently, which will result in clearer, more compelling, and more convincing stories.

So, what is SCOR? To explain SCOR, Professor Bruce begins with the classic three-act story structure, “the basis of Western storytelling.” Act I, the Setup, establishes the protagonist’s “status quo.” Act II, the Confrontation, breaks the status quo and takes the protagonist on a journey to a point of climax. Act III, the Resolution, introduces the protagonist’s “new normal” and resolves any unanswered questions. Taking this basic story structure a step further, advanced story structure builds additional milestones into each act to create an overarching “story arc” that provides “rising tension throughout the first and second acts and falling tension during the third.” Professor Bruce illustrates both the basic and advanced story structure through a classic movie, The Wizard of Oz.

Professor Bruce then translates this traditional formula into legal writing: Setup, Confrontation, Outcome, Resolution, or SCOR. As in advanced screenwriting, within each act, additional milestones help to give the story added structure and keep audience members engaged.

First, the Setup, Act I, humanizes the client by establishing the client’s life and status quo before the “bad event” of the litigation. Second, the Confrontation, Act II, is the “meat” of the story—it introduces the client’s antagonist and sets out the pivotal (i.e. outcome-determinative) facts. While the opposing party will often be the antagonist, for some clients, the antagonist will be subtler. For example, for less-sympathetic clients, the antagonist might be “mental-health problems, addiction, childhood trauma, or poverty.”

The third and fourth components of the story are the Outcome and the Resolution, Act III. The Outcome is “the end of the protagonist’s quest,” while the Resolution is “where the audience gets closure.” This is the most difficult section for legal writers because a “lawyer cannot simply resolve her client’s story . . . the way a screenwriter can.” Instead, the lawyer may invite closure by inviting “the judge or the jury to resolve the storyline in a way that favors the client.”

To illustrate how this structure works and why it is effective, Professor Bruce uses the statement of facts in the Petition for Certiorari in Miranda v. Arizona. This statement of facts helps illustrate the SCOR structure, but also shows how the structure “can work even for a largely unsympathetic defendant, one who has been convicted of a violent crime.” In addition, Professor Bruce points out that other landmark briefs use a similar story structure.

I encourage practitioners, legal writing professors, and law students to read Professor Bruce’s article. In the article, she provides a more in-depth discussion of advanced storytelling structure, including the milestones within each act. SCOR provides a practical, accessible, and memorable way to help lawyers incorporate storytelling into their legal writing. And if lawyers can make their clients’ stories more accessible to their audiences, those stories will hopefully also be clearer, more compelling, and more convincing.

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

[i] Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Fact Sections, 32 Rutgers L.J. 459, 475 (2001).

September 27, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Film, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts, Television, United States Supreme Court | Permalink | Comments (0)

Thursday, August 30, 2018

Thinking Thursdays: Making Citations Stylish

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

*****

Professor Alexa Chew’s forthcoming article, Stylish Legal Citation, asks whether legal citations can be stylish. Spoiler alert: The answer is yes.

What is a “stylish” citation? It is a citation that is “fully integrated with the prose to convey information in a readable way to a legal audience.” For law-trained readers, well-written citations communicate substantive information about the authorities that support the assertions in the text and the degree of support that the authorities provide. And when citations are well-written, they can “enhance the writer’s experience in the way that well-written prose can.” On the other hand, poorly written citations make it difficult for legal readers to understand the prose. As a result, readers will either skip over the citations or “slow to a painful crawl.”

What makes a citation “unstylish”? Professor Chew groups poorly written citations into two categories: “bumpy” citations and “presumptuous” citations. Bumpy citations interrupt the prose rather than working with it, while presumptuous citations communicate information that the reader expects to see not in the citation but in the prose. Bumpy and presumptuous citations are problematic in and of themselves, but identifying them can also help readers identify other writing problems.

In spite of the communicative role that citations play in legal writing, there is very little guidance about how to cite stylishly. Most legal writing texts don’t treat citation as a facet of legal writing style at all; as a result, they provide little to no advice about how to incorporate citations well. Similarly, many legal writers treat citations as an afterthought—a “separate, inferior part of the writing process, a perfunctory task that satisfies a convention but isn’t worth the attention that stylish writers spend on the ‘real’ words in their documents.”

So, how can you make your citations more stylish? Professor Chew describes a three-part system that any legal writer can follow, focusing on: (1) choosing what to cite; (2) writing the citation; and (3) revising to tie together prose and citations.

Professor Chew begins by providing advice on choosing what authority to cite and how many authorities to cite. She then provides guidance on writing the citation itself—choosing the citation placement, signal, and parenthetical content. As Professor Chew explains, these decisions should not be based on the Bluebook (or any other citation guide). Instead, they “should be driven by your understanding of the prose and its substantive relationship to the cited authority.” Finally, she provides advice on how to tie together the prose and the citations, i.e. how to identify the bumpy or presumptuous citations (which might also be signs of other writing problems) so that you can fix them.

There is one legal writing style expert who does provide guidance about citations—Bryan Garner. But the guidance that he provides isn’t about how to make in-line citations stylish because he views citations as “impediments to stylish legal writing.” Instead, Garner argues that writers should use footnotes instead of in-line citations.

Professor Chew rejects Garner’s critique of in-line citations because it is based on “the premise that writers aren’t up to the challenge of skillfully incorporating citations into their texts in a way that readers can follow.” Using footnotes may avoid some citation problems and may eliminate visual clutter, making it easier for writers to spot poorly written prose. However, it creates other writing problems. Even if citations are moved to footnotes, legal readers can’t ignore them because the citations convey necessary information about the authority that supports the assertions in the text. As Justice Scalia, Garner’s co-author, noted, moving citations to the footnotes thus “forces the reader’s “eyes to bounce repeatedly from text to footnote.” And weaving the details from the citations (such as the case name, court, and date) into the text might solve that problem but creates a new one in that it overemphasizes information that often isn’t worth emphasizing and makes the prose more awkward.

Instead, Professor Chew encourages legal writers to embrace in-line citations. In-line citations give the reader control over how much attention they pay to the citations by skimming them over or reading them in more detail. In general, readers pay less attention to citations than they do to prose, and this allows citations to be placed “right next to the propositions they support, at the reader’s point of need.” As a result, “in-line citations can convey information ‘almost subliminally’ as readers’ eyes speed across them.”

Professor Chew’s article fills an often-overlooked gap in the legal style literature, and it does so in a practical way. I encourage students, professors, and practitioners to read Professor Chew’s article for more detail, especially the “how tos” of making citations more stylish. I didn’t need much convincing about the importance of citation to legal writing, but Professor Chew’s article still made me think more deliberately about the role that citations play in good legal writing. And for those of you who teach legal writing (whether first-year or upper level), her article also makes the case for better integrating citations into the legal writing curriculum. Finally, if, like me, you can’t get enough of Professor Chew’s writing on citations, don’t miss her Citation Literacy article.

August 30, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, July 5, 2018

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

Ruth Anne Robbins, Distinguished Clinical Professor, Rutgers Law School

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

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

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

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

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

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

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