Appellate Advocacy Blog

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

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

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

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

***

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

***

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)

Thursday, May 24, 2018

Thinking Thursdays: What's in a parenthetical?

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

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

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

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

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

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

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

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

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

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

 

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

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

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

Thursday, May 10, 2018

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

 

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

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

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

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

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

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

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

 

 

 

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

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

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

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

Thursday, March 15, 2018

Thinking Thursdays: Know your logical fallacies (Part 1)

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

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

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

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

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

            Conclusion:                Defendant was speeding

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

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

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

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

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

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

Major premise: Climate change is making things warmer

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

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

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

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

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

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

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

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

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

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

Thursday, February 15, 2018

Thinking Thursday: Lincoln would have owned Twitter

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

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

Lincoln with pen and paper

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

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

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

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

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

Thursday, February 1, 2018

Thinking Thursday: St Brigid's Day and our writing process

Today is St. Brigid’s Day, celebrating propagation and creativity (primarily of women, but let’s interpret this broadly). As professional writers whose jobs entail creativity in problem-solving, it is a good day to stop and audit our own methods of propagating our acts of creativity, namely those of writing. The more we understand how we work as writers, the better we will write.

Professor Pam Jenoff—a Rutgers colleague as well as a New York Times Bestseller author—offers practitioners a way to do this in her short and quite readable article in Legal Communication & Rhetoric’s volume 10, The Self-Assessed Writer. In the article she imports tried-and-true methods from fiction-writing, re-imagined to help the legal writer. To improve our writing and our willingness to write, Professor Jenoff recommends we take a little time to express our work styles, optimized environments, and preferred tasks. Her suggestions for doing this exercise are simple to digest and complete. A few pages into the article she offers us a questionnaire that asks us to think about our most productive writing atmosphere. She also asks us to be honest about our task-preferences in the form of writing challenges and strengths.

I have taken this assessment and asked my students to do the same. In doing so, I have come to terms with the actual what and when of my writing successes, which are somewhat different than what I wish I could report are the what and when. I am great at the re-organizing and revising stages of the writing process and will happily work on that for hours on end with only a few breaks. A lengthy first draft will exhaust me, and to get through, I need to work on it in smaller chunks than I do a revising project. When I take mid-session breaks I know that I need to walk to process the information in my head, and I know that I need a notebook in hand or a voice recorder app at the ready, because I will forget every productive thought I had if I don't preserve it during the walk. I also know that I need two screens and therefore a desktop setup for the first-draft process. Research on one side, draft on the other. I need the same as I reorganize because I find it easier to cut and paste into a new document. If I am in later revising stages, a one-screen laptop works fine. This blog entry was written using the two-screen method. If I wrote it on my laptop you would be reading it as Thinking Saturday. 

The point Professor Jenoff makes isn’t that we can always have what we want in our writing milieu. Instead, it’s to understand what is optimal. The further we move from the optimal, the harder our writing process becomes. Conversely, our productivity and the quality of our product increases as we pay ourselves first with an optimized writing process.

Happy St. Brigid’s Day.

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

February 1, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Thursday, January 18, 2018

Thinking Thursdays: The idea of "opportune moments" in advocacy.

Appellate attorneys must choose not only the right arguments, but also the right moment for the argument. By that, I mean the right time in the world, and the right time in the brief. The idea of opportune moments draws upon a less-taught rhetorical concept, that of kairos.[1]

In Greek myth, two spirits represented different aspects of time: Chronos and Kairos. Chronos, often depicted as an aged man, was the spirit representing the sequential and linear passage of time. Kairos, the spirit of opportune moments—of possibilities—is shown as a young man, floating on air in a circuitous path. Francesco_Salviati_005-contrast-detail[2] His wings and the long hair growing only out of his face and not on the top or back of his head, symbolizes the need for people to seize him as he approaches, but not after he passed by. In his whirling travel patterns, Kairos—unlike Chronos—may come around again. Thus, the concept of kairos in rhetoric centers on the “opportune moment.” It is the difference between “being in the right time and place” versus the idea that people cannot go backwards in time.    

The “opportune moment” concept of kairos has been part of rhetoric since the time of Aristotle, who took the view that the moment in time in which an argument was delivered dictated the type of rhetorical devices that would be most effective. The sophists took a different view: Kairos is something to be manipulated by the presenter as part of adapting the audience’s interpretation of the current situation. Kairos assists in molding the persuasive message the speaker is communicating. Modern rhetoricians hold a middle view—that a presenter must be inventive and fluid because there can never be more than a contingent management of a present opportunity.

The Greek word kairos and its translation “opportune moment” embody two distinct concepts communicated through metaphors. The first concept, the derivation of the “right moment” half of the definition, is temporal. Greek mythology concentrated the spirit on the temporal. That is, the right time in the history of the world. For lawyers, that is important to know when making a policy argument. Is this the right moment in the trajectory of chronological time to make a particular policy argument. Will it persuade? Appellate attorneys who write civil rights and other impact-topic briefs will immediately understand what I am talking about. There is a right moment in history to make an argument. Some of the most important cases decided by the U.S. Supreme Court depended on the timing of the case—the kairos.  

In an article about creating kairos at the Supreme Court, and published in the Journal of Appellate Practice and Process, Professor Linda Berger has written about the idea of kairos and suggests that temporal metaphors are still useful, because they help explain why today’s dissent in an opinion may become tomorrow’s majority decision. In her analysis, she demonstrates that what may look like a missed or lost opportunity to persuade may still have an impact. A snagged thread in the fabric of the law, which, at an opportune later time, can be pulled to unravel the existing fabric of the legal sky when the opportune moment comes around again.  

Dreamstime now is the right moment teacupBut, the second half of the kairos definition—the opportunity—deals with the spatial. To seize the opportunity at the right time requires one to communicate in the right place and under the right circumstances. Rhetoricians commonly use visualizations of the penetrable openings needed for both the successful passage of the arrows of archery through loopholes in solid walls, and the productive shuttles of weaving through the warp yarns in fabric, as a way to describe the spatial aspect of kairos. Modern rhetoric takes these metaphors and elaborates, defining kairos as “a passing instant when an opening appears which must be driven through with force if success is to be achieved.”The idea is one of force and power.

For appellate attorneys, this represents the “where” an argument is placed in the internal whole of the document. The kairos of the legal writing. That depends, of course, on the overall narrative structure of the argument, the positions of emphasis in the beginnings and closings of sections and paragraphs, and the lasting imagery the writer wants the readers to walk away remembering. It is, as Professor Scott Fraley has noted in his Primer on Essential Classical Rhetoric for Practicing Attorneys, the idea that the writer understands the right moments “at which particular facts or arguments are inserted into the argument or presentation of the case.” He calls kairos, “the art of knowing when . . . to make the winning argument.” In other words, the strategic advocate spends time thinking about the persuasion of time. 

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[1] Some of this entry relies on language I wrote in an article on a different topic. Ruth Anne Robbins, Three 3Ls, Kairos, and the Civil Right to Counsel in Domestic Violence Cases, 2015 Mich. L. Rev. 1359 (2015). For the background on Kairos and kairos, I rely on these works: Carolyn R. Miller, Kairos in the Rhetoric of Science, in A Rhetoric of Doing: Essays on Written Discourse in Honor of James L. Kinneavy 310, 312–13 (Stephen P. Witte, Neil Nakadate & Roger D. Cherry eds., 1992); James Kinneavy & Catherine Eskin, Kairos in Aristotle’s Rhetoric, 17 Written Comm. 432, 436–38 (2000); and Eric Charles White, Kaironomia: on the Will-to-Invent 13–15 (1987).

[2] Francesco Salviati, Kairos (1552-1554) (fresco); picture courtesy of Wikimedia Commons, https://commons.wikimedia.org/wiki/File%3AFrancesco_Salviati_005-contrast-detail.jpg

January 18, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Thursday, January 4, 2018

Thinking Thursdays: New Science on the Ability of Facts to Debunk Myths

 

Extra! Extra! In a Post-Facts World, Facts Still Matter!

Yesterday, Slate published an important cover story written by Daniel Engber, LOL, Something Matters, in which he assures readers that facts still have power. In it, he outlines and reviews some of the scientific studies, old and new, that have analyzed the effects of presenting facts to counter false beliefs. There’s good news in the most recent studies. Facts do have an effect on debunking false information or myths.

The new science supporting the importance of factual persuasion, ironically has its own factual persuading to do. People who know a little bit about the science of managing adverse material typically rely on a small sample-size study conducted by Brendan Nyhan and Jason Reifler, When Corrections Fail: The Persistence of Political Misperceptions.[1] Two years prior to its actualy publication, the study was written up in mass-consumption media as part of the 2008 election fever. The stories tended to make dire predictions that fact-checking news stories would end up rallying people to become more firmly entrenched in their beliefs in the falsehoods. This phenomenon was termed the “backfire” or “boomerang” effect. Oxford Dictionaries selected “post-facts” as the 2016 word of the year, based in part on these studies.

Graduate students at different universities became interested in the Nyhan-Riefler paper, and attempted to replicate them, to no avail. The new studies were 103 times larger than the studies done by Nyhan and Riefler. One set of graduate students used over 10,000 test-subjects and another graduate student group used almost 4,000. The data tended to show the opposite: none of the conditions resulted in any evidence that people adhered to their views when presented with facts that showed the opposite was true. Rather, the studies showed that the test-subjects were more likely to adapt their views to better fit the facts.  

Rather than challenge the new science, essentially debunking theirs, the original scientists, Nyhan and Riefler collaborated with one of the other sets of researchers to conduct new studies. The foursome posted a 60-page article in the summer of 2017, The Effect of Information on Factual Beliefs and Candidate Favorability, [2]  concluding that people are willing to update factual beliefs when presented with “counter-attitudinal informaton.” However, they further concluded that updated factual beliefs might have only minimal effects on attitudes towards a political candidate. The very creators of the backfire/boomerang effect have questioned—some might say debunked—their own previous work. And the Slate article has set out to help publicize the new studies. Facts still matter.

So, what does the appellate lawyer take from all of this? Well, two things. First: the new studies give credence to the idea that the better way to manage adverse material is to disclose and refute it, rather than ignore it. Kathy Stanchi, a Professor of Law at Temple University has advised this in her germinal article, Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy.[3]  As cited in Professor Stanchi’s article, other scientists have suggested ways to confront adverse material—to immediately refute it when mentioned.[4]

Second, the wise appellate lawyer, turns to one of the resources that Daniel Engber cited in the Slate article, John Cook and Stephan Lewandowsky, The Debunking Handbook, available for free download (7 pages). The handbook offers an “Anatomy of an effective debunking” on page 6. The last of the advisory elements is to present information graphically, so I will end this blog post with a chart.

Elements, per handbook

Explanation in handbook

Blog Analysis

Core facts

Refute by emphasizing the key facts. This will create a gap in the knowledge of the audience—a hole where the falsities used to take up space

This isn’t said in the text of the handbook, but the examples do mention a need for the key facts to present as a cohesive, alternative narrative.

Explicit warnings

Before mentioning the myth or falsehood, provide textual or visual cues that upcoming information is false

In legal writing-ese, this advice suggests that the writer mention the myth only after presenting the true facts. That gives the truth the position of emphasis in a subsection or paragraph.

Alternative Explanation

Any gaps left by the debunking needs to be filled. Achieve this by providing an alternative causal explanation for why the myth is wrong (and perhaps why the falsities spread).

This isn’t said in the text of the handbook, but the examples do mention a need for alternative explanation to  present as a cohesive, alternative narrative. In other words, story persuades. Stories are organizational scaffolds that present information as cause à effect

Graphics

Core facts should be displayed graphically, if possible.

For lawyers, the legal reasoning may also be presented with infographics. But, not all infographics are useful infographics--some are merely decorative and others might be off-point. The writer must always balance the usefulness with the impact on persuasion. For more on this, see Steve Johansen and Ruth Anne Robbins, Art-icuating the Analysis: Systemizing the Decision to Use Visuals as Legal Reasoning, 20 Legal Writing 57 (2015).

[1] 32 Political Behavior, 303 (2010). The study used 130 undergraduate students at a Catholic university. These students were split among four different modules. Id. at 312.

[2] Brendan Nyhan, Ethan Porter, Jason Reifler, and Thomas Wood, Taking Corrections Literally but not Seriously? The Effect of Information on Factual Beliefs and Candidate Favorability (June 29, 2017), available on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995128 (last accessed January 3, 2018).

[3] 60 Rutgers L. Rev. 381 (2008).  

[4] Id. at 390–92.

 

January 4, 2018 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Thursday, December 7, 2017

Thinking Thursdays: Negativity, Empiricism, and Legal Advocacy

Negativity landscape

Professor Ken Chestek at the University of Wyoming College of Law has created two different empirical studies about persuasion and narrative, using judges as the test subject. For that rarity alone, his scholarship stands out as important for lawyers to read. In his most recent article, Fear and Loathing in Persuasive Writing,[1] he asked the question of whether the “negativity bias,” known to psychologists, works with judges as well as it works with voters. The answer is the standard one you would expect from a lawyer, “it depends.” That the answer isn’t a definitive “no way,” should give us pause as advocates. Our intuitive answer that we naturally graviate towards the positive turns out to be the opposite of how our brains work. Rather, as Chestek writes, “we have a natural inclination to attend to and process negative stimuli.” Scientists posit that we retain negative information longer because the brain processes it more thoroughly—perhaps as a necessary adaption in evolution to keeping ourselves alive. He reviews the science of negativity and implications for lawyers in greater detail in another recent article, Of Reptiles and Velcro: The brain’s “negativity bias” and Persuasion

In his eighteen-month empirical study with 163 judicial readers, Chestek used a series of nine appellate brief preliminary statements to test the power of positive versus negative themes in a simulated case file. Four were positive, four were negative, and one was neutral.[2] By themes, Chestek references George Lakoff’s formuation of “deep frames,” an idea Chestek wrote about in his other empirical study about judges and the persuasive power of story (You can read a snippet of George Lakoff’s framing concepts here).

Ultimately, Chestek’s concludes that the results don’t provide bright-line answers, but instead point towards complexity. Positive themes seem to focus the judges’ attention on the state of the governing law whereas negative themes focus their attention more on the nuances of the facts. He also found that negative themes work better for a David facing Goliath rather than vice versa.

 This phenomenon has significant implications for written legal advoacy, starting with theme selection. That strategy should factor in the strength of the legal position or the facts. Second, the negativity bias might lead an advocate to phrase policy arguments in terms of avoiding bad outcomes instead of promoting good outcomes, since the judge may process the negative statement more thoroughly. And, finally, the negativity bias suggests that it is critically important to understand the negative facts of your client’s case and the ways they can or cannot be managed.[3]   

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[1] Published as the lead article in Volume 14 of Legal Communication & Rhetoric: JAWLD

[2] For more on the persuasiveness of Preliminary Statements, see Steve Johansen’s article, Coming Attractions: An Essay on Movie Trailers and Preliminary Statements, and Maureen Johnson’s article, You Had Me at Hello: Examining the Impact of Powerful Introductory Emotional Hooks Set Forth in Appellate Briefs Filed in Recent Hotly Contested U.S. Supreme Court Decisions.

[3] Base photograph by Kenneth D. Chestek—photography is one of his hobbies.

 

December 7, 2017 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Thursday, October 26, 2017

Thinking Thursdays: Visual Impact Moments

What is the narrative climax in the Little Red Riding Hood fable? When the wolf eats Little Red. But what is the visual impact moment? The image you think about when you recall the story? That’s From 2006 AALS Clinic poster session
probably different. It’s either an image of a little girl in a red cape, walking through the woods or it’s the moment when Little Red first sees the wolf in Granny’s bed, wearing Granny’s nightclothes. The visual impact moment can be different from the story’s climax.

Jason Eyster writes about visual impact moments in one of my all-time favorite articles in the Applied Legal Storytelling canon. His article, The Lawyer as Artist, in Vol. 14 of the Journal of Legal Writing, explores the use of scene and setting as a persuasive tool for legal writers. This article is creative, and always fresh. It is one that I re-read and think about at least once or twice a year. The idea of the setting isn’t often discussed in the persuasion literature, but, as Eyster argues, can create lingering impressions. The legal writer who takes time during a description to linger on choice details will make the scene “pop” for the reader those visual images will provoke a natural, emotional response. The visual impact scene need not be the climax, but should connect to the case theme. If you can connect it to the theory of the case, all the better.

So, how do you do it? Eyster offers one idea: the obtuse object. That is something unexpected or incongruous with a scene that draws in the reader through a natural curiosity. In one of his examples, an asylum case, the legal writer zeroes in the description of his client, sitting in her former home and eating a pomegranate just before hearing a sinister knock on her door—one that results in her being dragged away by militia in her country. The simple mention of the pomegranate serves to draw the reader into the scene. It evokes the famous Persephone myth of a young woman dragged into hell while her mother tries to have her released. The scene is made all the more emotional for its layers of meaning. Pomegranate

Think about the scene in your client’s case that you hope the judicial panel will likewise remember when they put down the brief. Is it the scene you want? If it’s the same scene your opponent might choose, think of another one. If it is the scene you want, have you chosen some memorable detail to describe—an action, an object, a character, or the setting itself. Describe it with a name, sensory information, its function, its history, or a metaphor. Things like this put joy and art into the job of legal writing.

October 26, 2017 in Appellate Advocacy, Appellate Practice, Law School, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)