Wednesday, February 19, 2020
Continue Teaching the New Dogs, Old Tricks: The Value of Teaching Appellate Advocacy to Law Students
A majority of U.S. law schools teach persuasive writing and oral advocacy to 1L and 2L students as part of required courses.1 These courses often focus on appellate advocacy. This model has existed for many years, gaining steam especially in the late 1980s after the ABA criticized law schools for failing to properly train law students in appellate advocacy.2 Some law professors and law students question the value of teaching appellate advocacy when we know that many lawyers will not actually engage in writing formal appellate briefs or participate in formal appellate oral arguments during their careers. Through this post I support the continued teaching of the skills required to write an appellate brief and make an appellate argument because the skills taught and tested when doing this kind of work are essential lawyering skills across a wide range of jobs held by lawyers. Lawyers are professional communicators—writing and speaking are essential skills of the profession.
First, writing an appellate brief requires careful, precise, and accurate work. Students must work with and follow procedural and local rules that dictate how to format a particular document, what information must be included, and when and how the document produced must be filed. Students must learn to carefully read a record and research the law to craft legal arguments within parameters set by the rules, including page limits and section requirements that force writers to write and rewrite their work until it is sharp and concise. All of this must be done while the writer is persuasively and accurately explaining to the court why a particular argument has merit when considering the governing law and the facts. The writer must also properly cite the law and the record. These skills are all skills that are valued in the jobs that lawyers hold, from actually working in a litigation setting as an advocate, to advising and counseling clients in a more transactional practice, to working as a judge or a law clerk, just to name a few settings.
Second, oral communication skills are critical for lawyers. While not all lawyers will choose to engage in a litigation-type practice in which arguing to courts is a part of the work, most lawyers will need to “argue” or explain persuasively in their jobs. Appellate advocacy involves presenting arguments as well as responding to questions; it requires advocates to think on their feet. Lawyers who train in the skills of appellate advocacy will develop skills that will transfer to trial advocacy, negotiation, and other tasks requiring effective oral communication. Transactional lawyers will need to discuss positions with clients, orally communicate terms of a deal or a position, and negotiate terms of contracts. Many of the more formal skills required for oral argument will transfer to this transactional work. Even for those lawyers whose jobs do not include a focus on oral presentations, training to skillfully and thoughtfully respond to questions and clearly present legal and factual analysis is training that is an asset to most everyone in any type of legal job.
Third, developing appellate advocacy skills in law schools introduces students to professional and ethical norms that serve to give these burgeoning lawyers a taste of the legal profession and its traditions. Following rules, extending deference in a professional manner to the court, and showing respect for opposing counsel are all norms that should be learned in law schools and carried into the profession. Participating in the ceremony and discourse required in courses that teach appellate advocacy initiate these soon-to-be lawyers and welcome them into the legal community.
In conclusion, let’s continue to teach the new dogs the old tricks. Let’s strive to improve how we do it. Let’s even consider adding to appellate advocacy instruction, instruction and experiences in a variety of written and oral communication settings, like contract negotiation and drafting, trial advocacy, international advocacy, treaty negotiation and drafting, and other areas where lawyers are called upon to use their communication skills. We can value the foundational skills taught and learned through courses in appellate advocacy and supplement legal education with even more experiences that call on students to learn how to communicate effectively.
1 ALWD/LWI Survey 2018, Q. 6.4, https://www.lwionline.org/resources/surveys; Section on Legal Education & Admission to the Bar, Sourcebook on Legal Writing Programs 28, 46 (2006).
2 Michael Vitiello, Teaching Effective Oral Argument Skills: Forget About the Drama Coach, 75 Miss. L.J. 869, 869 (2006).
February 19, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts | Permalink | Comments (0)
Tuesday, February 18, 2020
Many of the legal standards courts apply to appellate issues resolve around the inevitably fuzzy concept of reasonableness. The reasonable person, reasonable expectations of privacy, reasonable observers, reasonably prudent consumers, reasonable suspicion—all of these tests require advocates to conjure some ideal of what reasonable people might do or think in a given factual scenario. And for most advocates, that standard can seem hopelessly inchoate.
One problem is determining the sources of a “reasonable” standard. Consider the determination of when a person has been “seized” for Fourth Amendment purposes, and thus the point at which officers must have a requisite level of suspicion to support that seizure. The touchstone test, established in United States v. Mendenhall, 446 U.S. 544, 554 (1980), suggests that officers have seized an individual when, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The test leaves unanswered whose opinions count in determining what a reasonable person might believe. Does the test measure what a police officer thinks it reasonable for an average citizen to believe—as it seemingly must if the test is to have any utility guiding day-to-day police activity? Or does the test focus upon what the average citizen believes? If the latter, must the test look to the reasonable beliefs of “average citizens” at the highest level of abstraction, or can it take into account the specific characteristics of the defendant, such as race?
The latter question arose recently in the South Carolina Supreme Court’s decision in State v. Spears, No. 27945 (S.C.), where the Court asked at oral argument whether the black defendant’s race should affect the Court’s evaluation of when a reasonable person no longer felt free to leave and was thus seized by police. The South Carolina Supreme Court noted the Mendenhall court’s view, echoed later by the Seventh Circuit, that although the defendant’s race is “not irrelevant,” it is also not dispositive. The Court also carefully noted the Tenth Circuit’s recent suggestion that race is not a relevant factor in the reasonable person test; that court argued that a racial factor would render the test impossibly complex for officers in the field given the “divergent attitudes towards law enforcement” within racial groups. The South Carolina Supreme Court was able to sidestep the issue by finding it unpreserved due to the defendant’s failure to raise it below. But the issue continues to percolate in other State Supreme Courts.
This argument has echoes in broader theories behind the interpretation of legal texts. Originalist accounts of constitutional interpretation, for instance, set their sights on constraining judicial discretion by assuring that would-be activist judges rule according to the law rather than their policy preferences. But the proper sources for originalist interpretation remain unclear. Are the pre-enactment writings of the text’s authors relevant as part of a narrower effort to find the original intent behind the document? What about dictionaries or legal treatises available before (or after) enactment that might shed light upon the popularly understood meanings of a text? And should the interpretive methods taken today echo the interpretive methods that the lawyers or judges of the time of the enactment might have relied upon?
Neither the narrower question of interpreting a specific issue of reasonable beliefs, nor the broader question of interpreting the relevant sources of original intent or meaning, has a clear answer that makes appellate advocates’ jobs easy. But advocates should not resign themselves to guesswork. Definite answers may be impossible in either project. Yet the effort to use all available methods to guide decision-makers can still lend clarity to an apparently insoluble legal inquiry. Though it is hard to say who has the better of the arguments about the sources and scope of inquiry, it may nonetheless be an argument worth having. Appellate advocates should strive to understand the problems of source in the fuzzy standards they may need to deploy in advocacy, then do their best to resolve the problems by choosing sources in a logical, up-front manner. Those with the most candid and convincing accounts are likely to find success on appeal.
 United States v. Mendenhall, 446 U.S. 544, 558 (1980); United States v. Smith, 794 F.3d 681, 688 (7th Cir. 2015).
 United States v. Easley, 911 F.3d 1074, 1082 (10th Cir. 2018), cert. denied, 2019 WL 1886117 (U.S. Apr. 29, 2019).
 See, e.g., Commonwealth v. Evelyn, No. SJC-12808 (Mass.).
February 18, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)
Wednesday, January 29, 2020
The record on appeal includes “original papers and exhibits filed in the district court,” a “transcript of the proceedings” from the district court, and a “certified copy of the docket entries.”1 Appellate courts across the country have similar rules. The trial lawyer works hard to present evidence to support the client’s case. The lawyer also works hard to create and present effective demonstrative evidence. Charts printed on large boards may be used to display data and other information supporting witness testimony. Physical models may represent a forest or the seabed and be used by an expert to explain testimony about run off or contamination. And more and more often, in place of these physical charts and models, electronic presentations may be used to demonstrate this information. A witness may testify while reviewing a video of a surgery or other procedure. Models may be shown electronically, the advantage being that the models can be quickly modified or added to as a person is testifying to demonstrate the testimony. These are all effective ways of delivering information to the jury and the court.
One of the challenges for the lawyer after trying a case with demonstrative evidence includes ensuring that these exhibits, essential to the case at trial, are accessible in forms such that they can be easily transferred to and reviewed by an appellate court, should there be an appeal. Appellate courts prefer to review information in electronic form or paper form; bulky exhibits will not ordinarily be part of the appellate court’s review.2 Thus, the trial lawyer should consider photographing bulky exhibits and entering such photographs into the record so that they can be considered by the appellate court. Information presented electronically should also be included in the record, either by printing and introducing the information in its paper form or by ensuring that the electronic version is preserved either on a flash drive or in an electronic record or transcript created by the court reporter. If the electronic exhibits are manipulated or otherwise changed as part of the testimony, the lawyer must be sure that all versions of what is presented are captured for the record.
As technology evolves, lawyers need to adapt to ensure that their exhibits are in forms and on media that will be accessible to the appellate courts. Lawyers must also ensure that all exhibits are properly identified in the record and that the record is clear about which exhibits were entered and not entered into evidence. Lawyers must abide by procedural rules and local court rules regarding these issues, of course. Moreover, they must think and act strategically to guarantee that their exhibits will be considered by the trial and the appellate courts. Lawyers should not rely on court staff to manage this information.
1 Fed. R. App. P. 10(a).
Tuesday, January 14, 2020
Last year was a rough year for the doctrine of stare decisis, the rule that prior precedent should be followed in subsequent similar cases. In 2018, in Janus v. American Federation of State, County and Municipal Employees, Justice Alito quoted from Payne v. Tennessee, a 1991 Rehnquist opinion, reasoning that stare decisis as important because it "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Thus, although stare decisis is not an "inexorable command," past precedent should not be overturned without "strong grounds" for doing so. These grounds included an analysis of the quality of the reasoning, the workability of the rule established, its consistency with related decisions, developments since the rule was handed down, and subsequent reliance on the decision.
In his May 2019 majority opinion in Franchise Tax Board v. Hyatt, Justice Thomas concluded, after analyzing four of these factors, that the first three justified overruling prior precedent. In reaction, Justice Breyer noted in his dissent that believing that a case was wrongly decided cannot justify "scrapping settled precedent." Instead, according to Breyer, since the dissent in the prior precedent had considered the majority decision to be wrongly decided, but still "plausible," overruling a decision that is not "obviously wrong" simply because the majority now agrees with the prior dissent is "obviously wrong."
The next month, Justice Kagan, writing for the majority in Kisor v. Wilkie, again quoted from Payne regarding the importance of stare decisis, and argued that any departure from the doctrine must be supported by some "special justification" beyond the argument that the prior case was wrongly decided. Finding that the precedent at issue was not "unworkable" or a "doctrinal dinosaur," the majority refused to overturn it. Justice Gorsuch, writing a concurring opinion, seemed to reject Kagan's strict approach, instead returning to the Janus factors created by Alito and suggesting that such factors should permit the overturning of precedent when it "no longer withstands careful analysis."
This back-and-forth battle involves more than just a disagreement over the legal standard for overturning precedent. There are political and social subcontexts that are being flagged in these cases. But that is a subject for a different blog. What I am concerned with is what a practitioner, after all of this sparring, is supposed to do with adverse authority now.
First, it should go without saying that you can't ignore adverse authority. ABA Model Rule3.3(a)(2) states that “a lawyer shall not knowingly … 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.” Even if you think you can distinguish the authority, or that it is a dead doctrine, you must deal with it.
Second, be sure that you are actually dealing with precedent that is directly applicable to your case. If the authority is distinguishable, you don't need to directly attack it. Just show why the decision does not dictate a result in your case. As Justice Frankfurter wrote, "If a precedent involving a black horse is applied to a case involving a white horse, we are not excited. If it were an elephant or an animal ferae naturae or a chose in action, then we would venture into thought. The difference might make a difference." Reid v. Covert, 354 U.S. 1, 50 (1957) (Frankfurter, concurring). Explain why your differences dictate a different outcome.
Third, when you do have to discuss applicable adverse authority,and you cannot distinguish it, use the structure applied by both sides of the debate whenever possible. Both sides of the debate in the Court give lip service to the idea that stare decisis is not a rigid doctrine. One side seems to focus on whether the prior decision is unworkable or out-of-touch with current law, while the other prefers the multifactoral approach under Janus. Using both approaches therefore seems to be the best bet - quote and use the Janus factors, but focus on why the prior case has become unworkable or is out-of-touch with current law.
Fourth, enlist aid when showing why the prior case is unworkable. Surveys of former Supreme Court Clerks indicate that they find amicus briefs particularly helpful when dealing with complex issues beyond their experience. See Lynch, Best Friends?: Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J.L. & Pol. 33 (Winter 2004). If a doctrine has had an unworkable impact in a particular field, then briefing from amicus in that field may be necessary to get across the point. Consider soliciting that briefing at an early stage, as well as setting out the issue even in intermediate appellate courts.
Fifth, and finally, know your enemy. Understand the underpinnings and history of your adverse authority, so you can help the Court understand how some of those underpinnings may have changed over time. This will require extensive research, but if the Court is going to require "special justification" to change the adverse authority, it will require special effort on your part to explain and justify that departure. This may require some legal digging, but if you can show, at the end, that the adverse case is really a dinosaur, all that digging is worth it.
Thanks goes to appellate lawyer Scott Rothenberg's paper, "Prevailing in the Face of Adverse 'White Horse" Authority" for inspiring this post.
(image credit: Dinornis Elephantopus, Roger Fenton c1854 (Digital image courtesy of the Getty's Open Content Program)).
Saturday, December 14, 2019
In this season of giving, we have the gifts of two new scathing appellate opinions on poor persuasion and civility to remind us all our courts really want for Christmas (and any holiday) is clear, ethical writing. While we have plenty of past examples of appellate courts taking poor writers to task, in November, we gained two more published opinions building on past decisions and reminding us truly persuasive writing is both straightforward and civil.
The blogosphere has already discussed the November 7, 2019 Seventh Circuit opinion in McCurry v. Kenco Logistics, where the court explained: “Bad writing does not normally warrant sanctions, but we draw the line at gibberish.” 942 F.3d 783, 792 (7th Cir. 2019). For a fun review of McCurry listing the many biting phrases the court used, including the new signal “(all errors in original),” see Kevin Underhill’s November 8, 2019 blog. https://loweringthebar.net/2019/11/seventh-circuit-we-draw-the-line-at-gibberish.html.
The McCurry court cited Stanard v. Nygren, 658 F.3d 792, 801–02 (7th Cir. 2011), a Seventh Circuit decision ordering an attorney to should show cause why he should not be disciplined for poor writing and lack of civility. Counsel in Stanard first gained notoriety representing alleged repeat wife-killer Drew Peterson in civil litigation, and faced criticism for his past litigation tactics. See Howard Posner, “Mind Your Grammar,” Cal. Lawyer (Nov. 2012). In Stanard, the court chastised counsel for “Lack of punctuation,” “Near incomprehensibility,” “Failure to follow basic directions,” “Grammatical and syntactical errors,” and incorrect statements of fact and law. 658 F.3d at 797-800. According to Judge Sykes, who also authored McCurry: “At least 23 sentences [in the Stanard brief] contained 100 or more words. This includes sentences of 385, 345, and 291 words.” Stanard, 658 F.3d at 798. Moreover, counsel’s refusal to follow court orders and lack of respect for the trial court hindered his representation of his landowner client in Stanard. Id. at 800-02.
For years, I have used Stanard in appellate advocacy teaching to support the idea truly persuasive writing is accurate and precise. I also use the case to show how lack of civility to the court and others inhibits persuasion.
Now, we can also point students to McCurry, and we have a new case from California expressly saying lack of civility is unpersuasive. On November 22, 2019, the California Court of Appeal issued its opinion in Briganti v. Chow, ___ Cal. App. 4th __, 2019 WL 6242111, *1 (Nov. 22, 2019), and ordered the opinion published “to draw attention to our concluding note on civility, sexism, and persuasive brief writing.” See Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019).
Briganti involved, in part, an anti-SLAPP motion regarding claims based on Facebook posts. 2019 WL 6242111, *2-4. In the trial court, then Superior Court Judge Feuer, now a Court of Appeal Justice, made several rulings for and against defendant Chow, and the Briganti court affirmed those rulings. Id. After discussing the merits, the court added an opinion section titled “A Note on Civility, Sexism, and Persuasive Brief Writing,” explaining: “we would be remiss if we did not also comment on a highly inappropriate assessment of certain personal characteristics of the trial judge, including her appearance, [in] Chow’s reply brief. We do so not to punish or embarrass, but to take advantage of a teachable moment.” Id. at *4.
This “teachable moment” was a chance to remind us all sexism, in any form, is unprofessional, unpersuasive, and uncivil. Chow’s reply brief began with comments Justice Feuer was “an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench,” noting “[w]ith due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let’s review the errors!” Id. at *4. When questioned at oral argument, Chow’s counsel “stated he intended to compliment the trial judge.” Id. Nevertheless, the appellate court concluded the brief “reflect[ed] gender bias and disrespect for the judicial system.” Id. According to the court: “Calling a woman judge — now an Associate Justice of this court — ‘attractive,’ . . . is inappropriate because it is both irrelevant and sexist. This is true whether intended as a compliment or not. Such comments would not likely have been made about a male judge.” The court cited the California Code of Judicial Ethics, which compels judges to require lawyers “to refrain from” bias based on gender. Id. at *5. As the Briganti court explained, “as judicial officers, we can and should take steps to help reduce incivility,” by “calling gendered incivility out for what it is and insisting it not be repeated.” Id.
The court ended its opinion: “We conclude by extending our thanks to the many talented lawyers whose excellent briefs and scrupulous professionalism make our work product better and our task more enjoyable.” Id According to Briganti, good brief-writing “requires hard work, rigorous analysis, and careful attention to detail.” Thus, while courts “welcome creativity and do not require perfection,” Briganti “simply did not find the peculiar style and content of [Chow’s] brief’s opening paragraph appropriate, helpful, or persuasive.” Id.
Counsel for Chow appears unrepentant, telling the Metropolitan News-Enterprise the court “totally missed the boat on this one, attacking the messenger . . . for using one generally descriptive word ‘attractive’” and exclaiming “Shame on the DCA! Shame on the DCA!” regarding what used to be called the District Court of Appeal. MetNews Staff Writer, “Reference in Brief to Female Judge as ‘Attractive’ Is Sexist: Justice Currey Says Note Is Made of Inappropriateness of Conduct for Instructional Purpose,” http://www.metnews.com/articles/2019/attractive112519.htm (Nov. 25, 2019). While the Briganti court noted the case did not warrant sanctions, the California State Bar has sanctioned Chow’s counsel in the past. Id.
Despite the Briganti counsel’s rejection of the opinion, the rest of us can add Briganti to McCurry and Stanard, among others, on our personal lists of cases reminding us all courts really want is clear, honest writing that helps them reach proper decisions. And for those of us teaching and mentoring new legal writers, these November gifts from appellate courts help us remind young attorneys true persuasion is civil and thoughtful. Happy holidays!
December 14, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)
Tuesday, December 10, 2019
In Portage County Board of Developmental Disabilities v. Portage County Educators' Association for Developmental Disabilities, the Ohio Supreme Court held that a court of appeals should review de novo a trial court judgment confirming, modifying, vacating, or correcting an arbitration award. This case resolved a split among Ohio’s intermediate appellate courts, some of which had held that abuse of discretion was the appropriate standard of review.
But why had the split occurred? What support had the lower courts relied upon to conclude that abuse of discretion was the proper standard of review?
It turns out, there wasn’t any reasoned support for the abuse of discretion standard. The split occurred because courts and advocates had failed to trace the genealogy of the law they were citing or had simply said that abuse of discretion applied without explaining why. This shows the need for both advocates and courts to research the origin of the law being cited to ensure well-reasoned arguments and decisions.
Before the Ohio Supreme Court’s decision in Portage County Board of Developmental Disabilities, three of Ohio’s twelve appellate districts, the Eighth, Tenth, and Twelfth, had held that abuse of discretion was the appropriate standard of review when an appellate court reviewed a trial court’s decision confirming, modifying, vacating, or correcting an arbitration award. So let’s trace the genealogy of the abuse of discretion standard in these three districts.
Ohio’s Eighth District Court of Appeals
Cleveland State University v. Fraternal Order of Police said that abuse of discretion was the appropriate standard of review. The court in Cleveland State cited Citibank, N.A. v. White, which said that abuse of discretion was the appropriate standard but the White court didn’t cite any support for that conclusion or explain why abuse of discretion was the proper standard.
An earlier Eighth District case, Miller v. Management Recruiters International, Inc., had also applied the abuse of discretion. Miller relied on an Eighth District case, Motor Wheel Corporation v. Goodyear Tire & Rubber Co. But the court in Motor Wheel hadn’t said that abuse of discretion applied; instead, Motor Wheel had recognized that the applicable standard of review was unclear, so the Motor Wheel court reviewed the trial court’s decision under both the abuse of discretion standard and the de novo standard.
Ohio’s Tenth District Court of Appeals
In Dodge v. Dodge, Ohio’s Tenth District Court of Appeals said that abuse of discretion was the appropriate standard of review and cited MBNA American Bank, NA v. E. Paul Jones as support. But the E. Paul Jones court didn’t cite any support or explain why it applied the abuse of discretion standard.
The Tenth District also used the abuse of discretion standard in State of Ohio Department of Administrative Services, Office of Collective Bargaining v. Fraternal Order of Police of Ohio, Inc. That case relied on Licking Heights Local School District Board of Education v. Reynoldsburg City School District Board of Education, which in turn cited MBNA American Bank, NA v. E. Paul Jones. The court in Licking Heights, in citing E. Paul Jones, said that E. Paul Jones cited another Tenth District case, Endicott v. Johrent to support the abuse of discretion standard. While E. Paul Jones had cited Endicott, it did not use Endicott to support the abuse of discretion standard. And Endicott did not say that abuse of discretion was the proper standard of review.
Ohio’s Twelve District Court of Appeals
The Twelve District’s adoption of the abuse of discretion standard appears to stem from the decision of the Ohio Eleventh District Court of Appeals in Citigroup Global Markets, Inc. v. Masek. Masek held that abuse of discretion was the correct standard of review and cited an Ohio Sixth District Court of Appeals decision, Herrendeen v. Daimler Chrysler Corp., to support the abuse of discretion standard. But Herrendeen didn’t say that abuse of discretion applied—Herrendeen didn’t even discuss the applicable standard of review.
The Masek court also relied on its earlier decision in Rossi v. Lanmark Homes, Inc. The Rossi court did not explain or cite support for its conclusion that abuse of discretion was the appropriate standard of review.
In Buchholz v. W. Chester Dental Group, the Twelfth District cited the Eleventh District’s decision in Masek to support the abuse of discretion standard of review. In re Hamilton cited Buchholz for the same standard.
These cases show the need to trace the genealogy of the law you are relying on. Doing this will allow advocates to develop arguments to support the continued application of precedent or the overruling of precedent. It will also promote the well-reasoned, consistent application of the law.
 103 N.E. 3d 804 (2018).
 Id. at 805.
 Dodge v. Dodge, 95 N.E.3d 820, 822 (Ohio App. 10th Dist. 2017), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018); In re Hamilton v. Intl. Union of Operating Engineers, Loc. 20, 69 N.E.3d 1253, 1255 (Ohio App. 12th Dist. 2016), cause dismissed sub nom. In re Hamilton v. Internatl. Union of Operating Engineers, Loc. 20, 150 Ohio St. 3d 1413 (2017), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018); and Cleveland State Univ. v. Fraternal Or. of Police, Ohio Lab. Council, Inc., 50 N.E.3d 285 (Ohio App. 8th Dist. 2015), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018).
 Cleveland State Univ., 50 N.E. 3d at 289.
 99868, 2014 WL 346740, at *3 (Ohio App. 8th Dist. Jan. 30, 2014).
 906 N.E. 2d 1162 (Ohio App. 8th Dist. 2009).
 Id. at 1166.
 647 N.E. 2d 844 (Ohio App. 8th Dist. 1994).
 Id. at 849.
 95 N.E.3d 820, 822 (Ohio App. 10th Dist. 2017).
 Id. at 826, citing MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, at *3 (Ohio App. 10th Dist. Dec. 20, 2005).
 MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, (Ohio App. 10th Dist. Dec. 20, 2005).
 89 N.E. 3d 103, 108 (Ohio App. 10th Dist. 2017).
 996 N.E. 2d 1025, 2018 (Ohio App. 10th Dist. 2013).
 Id. (“Typically, our review of a trial court decision to confirm an arbitration award is conducted under the abuse of discretion standard. See MBNA Am. Bank, N.A. v. Jones, 10th Dist. No. 05AP–665, 2005-Ohio-6760, 2005 WL 3485512, ¶ 10, citing Endicott v. Johrendt, 10th Dist. No. 97APE08–1122, 1998 WL 212770 (Apr. 30, 1998).”).
 97APE08-1122, 1998 WL 212770, at *1 (Ohio App. 10th Dist. Apr. 30, 1998).
 MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, at *2 (Ohio App. 10th Dist. Dec. 20, 2005).
 Endicott v. Johrendt, 97APE08-1122, 1998 WL 212770 (Ohio App. 10th Dist. Apr. 30, 1998).
 2006-T-0052, 2007 WL 1395360, at *2 (Ohio App. 11th Dist. May 11, 2007), overruled by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 86 N.E.3d 580 (Ohio App. 11th Dist. 2017).
 L-00-1268, 2001 WL 304843 (Ohio App. 6th Dist. Mar. 30, 2001).
 94-L-046, 1994 WL 738800, at *6 (Ohio App. 11th Dist. Dec. 30, 1994).
 CA2007-11-292, 2008 WL 4541954, at *2 (Ohio App. 12th Dist. Oct. 13, 2008).
 In re Hamilton v. Intl. Union of Operating Engineers, Loc. 20, 69 N.E.3d 1253, 1255 (Ohio App. 12th Dist. 2016).
Friday, December 6, 2019
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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting
US Supreme Court Opinions and News:
- A few weeks ago, this column noted that four federal executions had been stayed, effectively blocking the recent Justice Department decision to resume federal executions. This week, after an emergency bid to a federal appeals court was rejected, the Justice Department asked the Supreme Court to reverse that stay. The request asks that the executions be allowed to continue early next week. See more from CNN and Reuters.
- After the Second Circuit refused to block the House of Representative’s subpoena for Donald Trump’s financial records, the President has petitioned the Supreme Court to void the subpoena. APNews. The Second Circuit ruling finds the House Committee’s “interests in pursuing their constitutional legislative function is a far more significant public interest than whatever public interest inheres in avoiding the risk of a Chief Executive’s distraction." Order at page 105.
- This week, the Supreme Court heard argument on the Second Amendment in New York State Rifle and Pistol Association v. City of New York, the first major gun-related case before them in nearly a decade. The case centers on NYC gun ownership laws, which limited the ability to take a licensed firearm out of the home. However, the laws have since been amended, removing the contested restrictions. Thus, one of the more pertinent questions before the court is whether the case is moot. See NYT OpEd here.
- The Court is considering an appeal about whether the US Constitution gives homeless people the right to sleep on the sidewalk. Last year, the Ninth Circuit held that it was cruel and unusual punishment for a city to “prosecut[e] people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” Opinion p. 4.
Federal Appellate Court Opinions and News:
- A recent State Department rule requiring that foreigners disclose their social media accounts when applying for a visa is the target of a new federal lawsuit. The suit raises privacy and surveillance issues and argues that the rule violates the US Constitution’s rights to free speech and association. See NYTimes article here.
- The Eleventh Circuit heard argument this week in a case that could set precedent on the issue of bathroom access by transgender high school students. The lower-court ruling on appeal granted the transgender petitioner access to the boy’s bathroom at his high school in Florida. See AJC article here.
State Appeals Court News
- The Ohio Court of Appeals has overturned a zoning board refusal to allow the company “Broke Ass Phone” to use its name on a street sign. The court ruled that the word “ass” when used in the phrase “broke ass phone” is neither obscene nor immoral and that the company had a First Amendment right to use the word. See ABA Journal story here.
Tuesday, October 29, 2019
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. 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. 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.
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.
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. 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.
 Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339 (2017).
 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).
 See Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341-43 (2017).
 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.
 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
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.
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:
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.
Tuesday, October 1, 2019
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. 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.
 “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)).
Monday, September 23, 2019
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!
Wednesday, July 31, 2019
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.
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.
Friday, July 5, 2019
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 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:
Monday, June 17, 2019
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!
Tuesday, May 28, 2019
In my last post I talked about the importance of tailoring your arguments to your panel. This week, I want to provide some practical advice on how to get to know your justices.
The first step is to know what they have written on in relation to your case. Most likely, you are already doing this as part of your legal research. Taking the time to take notes and reference authoring or dissenting justices will let you know if one of your justices has written on your issue in the past, and the approach they have taken to similar types of analysis.
This step should be a starting place for your analysis, not an end-point. As discussed earlier, judges are people, too, and their prior opinions may give you the “what” of their past reasoning, but not necessarily the “why.” To figure that out, you have to go a bit deeper.
There are a dizzying array of resources available for that task. Be aware that some are put together with particular social agendas in mind, or based on a particular experience with a judge, and are thus likely slanted one way or another. Recourse to several tools or sources is thus necessary to get a complete picture. These resources include:
- Westlaw Profiler
- Ravel Law
- League of Women Voters
- Alliance for Justice (AFJ) Reports on the Judiciary
- The Robing Room
In addition to these online nationwide resources, you can also find background information in court biographies, state and local bar association websites, campaign websites (for those judges who are elected or retained by vote), social media websites, news outlets, and by simply “Googling” the judge. Offline, don’t forget your own network of peers who will have insights based on their personal experiences.
When you have looked over these resources, you will have a better idea of what makes your particular judge or panel of justices “tick.” You can then tailor your argument to their life experiences in a way that will help them better understand your case. Be sure to stay mindful about the proper ways to do so, as discussed earlier.
If you know of a good resource that I did not list, please let me know.
(Image credit: Gene Elderman, Washington Post, January 7, 1937)
Tuesday, April 30, 2019
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.”).
Monday, April 1, 2019
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.
Saturday, February 16, 2019
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.
Friday, February 8, 2019
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.
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.
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 . . ."
Monday, February 4, 2019
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.