Appellate Advocacy Blog

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

Saturday, June 18, 2022

Rejecting Canons of Construction and Following Legislative Intent to Define a Bee As a “Fish”

By now, you've probably heard that a California appellate court deemed bees "fish."   In fact, a truth-checking site, Verify.com, even posted a verification of the claim a court ruled a bee a fish as “true.”   See https://www.verifythis.com/article/news/verify/courts/bees-are-fish-says-california-court-for-conservation-law/536-ae3e9921-2b54-432e-8c51-66fc3e23eca4.  However unusual the idea of a bee as a fish might seem, the opinion from the Third District California Court of Appeal contains some very careful analysis and discussion of long established canons of statutory construction that will be helpful to appellate practitioners.  While the court in Almond Alliance of California v. Fish and Game Commission, __ Cal. App. 4th __ (C093542 May 21, 2022), definitely finessed some points and seemed to reject those canons not helpful to its conclusion, it also gave us an excellent modern discussion of what some canons of construction mean and how they rank against evidence of legislative intent.  

The Almond Alliance dispute involved a new California Fish and Game Commission designation of four types of bumble bees as protected "fish" under California's Endangered Species Act, Fish & G. Code § 2050 et seq.  The Act "directs the Fish and Game Commission (Commission) to 'establish a list of endangered species and a list of threatened species.'"  Almond Alliance, slip op. at 2. 

As the court explained, "The issue presented here is whether the bumble bee, a terrestrial invertebrate, falls within the definition of fish, as that term is used in the definitions of endangered species in section 2062, threatened species in section 2067, and candidate species . . . in section 2068 of the Act."  Id.  Slate.com noted:  because section 45 of the California Endangered Species Act “defines a fish as a ‘wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals,’” the State and environmental intervenors “argued that the inclusion of the word invertebrate technically allows the act to cover all invertebrates, not just aquatic ones.”  Emma Wallenbrock, The Completely Logical Reason Why a Bee Can Be Considered a Fish Now (June 04, 2022) https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.

The Almond Alliance court first concluded “the Commission has the authority to list an invertebrate as an endangered or threatened species.”  Next, the court “consider[ed] whether the Commission’s authority is limited to listing only aquatic invertebrates [and] conclude[d] the answer is, “no.”  Slip op. at 2. 

At the heart of the court’s decision is the use of legislative history to define “fish” and “invertebrate.”  The court begins this analysis by explaining:

Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.  We acknowledge the scope of the definition is ambiguous but also recognize we are not interpreting the definition on a blank slate. The legislative history supports the liberal interpretation of the Act (the lens through which we are required to construe the Act) that the Commission may list any invertebrate as an endangered or threatened.  

Id. at 2-3. 

Over the next 32 pages, the Almond Alliance court supports this conclusion by using a small number of past appellate cases, rejecting some canons of construction, and analyzing a significant amount of legislative language and history.  I strongly recommend reading the whole opinion, but I will summarize a few of the canons of construction the court rejected here.

First, the court reminded the parties of the general, underlying rule that courts must apply statutes as written, and “[i]f there is no ambiguity, we presume the lawmakers meant what they said, and we apply the term or phrase in accordance with that meaning.“   Almond Alliance, slip op. at 19.  According to the court, “[i]f, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.”  Id.  Thus, “’[o]ur fundamental task . . . is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’” Id., quoting California Forestry Assn. v. California Fish & Game Commission, 156 Cal. App. 4th 1535, 1544-1545 (2007).   “Where . . . the Legislature has provided a technical definition of a word, we construe the term of art in accordance with the technical meaning,” and “we are tasked with liberally construing the Act to effectuate its remedial purpose.” Id. at 19-20.

Second, the court rejected petitioners’ rule against surplusage canon argument that applying the section 45 definition of “fish” as including invertebrates here would write the listing of “amphibians” out of other sections.   The court explained the “rle against surplusage . . . provides courts should “avoid, if possible, interpretations that render a part of a statute surplusage.”  Id. at 20.  Interestingly, the court recognized a “textual tension with the Legislature’s inclusion of amphibian in [some] sections,” but noted:  “the rule against surplusage is not, however, an infallible canon. The canon is merely a “guide for ascertaining legislative intent, it is not a command.”  Id. 

Next, the Almond Alliance court rejected “petitioners’ argument that the noscitur a sociis canon should be applied to read ‘a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant’ in sections 2062, 2067, and 2068, as encompassing only vertebrate animals.”  Id. at 21.  The court dismissed this idea because, “[p]lainly, section 45 expressly includes invertebrates within the definition of fish.”  Id.

Third, after a lengthy discussion legislative history, the Almond Alliance court considered “petitioners’ suggested application of the noscitur a sociis canon,” which “means ‘a word takes meaning from the company it keeps.’”  Id. at 33.  Under this rule, a “word of uncertain meaning may be known from its associates and its meaning ‘enlarged or restrained by reference to the object of the whole clause in which it is used.’” Id.  “In accordance with this principle of construction, a court will adopt a restrictive meaning of a listed item if acceptance of a more expansive meaning would make other items in the list unnecessary or redundant, or would otherwise make the item markedly dissimilar to the other items in the list.” Id

The Almond Alliance court “decline[d] to apply the statutory interpretation canon here because:   

If we were to apply the noscitur a sociis canon to the term invertebrate in section 45 to limit and restrict the term to aquatic species, as petitioners suggest, we would have to apply that limitation to all items in the list.  In other words, we would have to conclude the Commission may list only aquatic mollusks, crustaceans, and amphibians as well. Such a conclusion is directly at odds with the Legislature’s approval of the Commission’s listing of a terrestrial mollusk [the bristle snail, a land invertebrate  previously protected] and invertebrate as a threatened species. Furthermore, limiting the term to aquatic would require a restrictive rather than liberal interpretation of the Act, which is also directly at odds with our duty to liberally construe the remedial statutes contained therein.

Id. at 33-34.

Based on its review of legislative history and rejection of petitioners’ arguments, the court concluded “the Commission may list any invertebrate,” including a terrestrial invertebrate, as an endangered or threatened species under 2062 and 2067.”  Therefore, the Almond Alliance court ruled the Commission could designate a bee as a “fish” for purposes of the Endangered Species Act.  Id. at 35.  As Emma Wallenbrock noted for Slate:  “It’s unclear whether this is a permanent victory, as the agricultural groups may decide to take the case to the California Supreme Court,” but the ruling could be “good news for the bees—and good news for our stomachs, too” because the “Center for Food Safety, states that “one out of every three bites of food we eat [comes] from a crop pollinated by bees.”  Wallenbrock, Why a Bee Can Be Considered a Fish Now, https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.  Even if this possible “good news” falls on review, the case certainly provides an interesting discussion of canons of construction.

June 18, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (1)

Friday, June 3, 2022

Appellate Advocacy Blog Weekly Roundup Friday, June 3

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send 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.

Supreme Court News and Opinions:

This was a relatively quiet work at the Supreme Court, as the Court did not issue any opinions this week.  Nonetheless, the Court faces a substantial task in completing its work as the end of the term approaches.   As of now, the Court has more than 30 decisions still outstanding in argued cases.  The Roberts Court has traditionally gotten all of its cases out by the end of June.

On Tuesday, the Court issued a brief order in which it blocked a controversial Texas law that sought to bar large social media platforms from removing posts based on the viewpoints expressed.  Chief Justice Roberts and Justices Kavanaugh, Barrett, Breyer, and Sotomayor joined together to vote in favor of putting the law on hold, while Justices Thomas, Alito, Gorsuch, and Kagan dissented.

Also on Tuesday, the Court issued a brief order in which it rejected a request from three Texas lawmakers to delay giving depositions in lawsuits challenging redistricting plans in the state.  No dissents were noted.

State Appellate Court Opinions and News:

On Wednesday, the presiding justice of the California appeals court in Sacramento retired as part of punishment announced for his delays in resolving 200 cases over a decade.  The Commission on Judicial Reform in the state said that the Justice "engaged in a pattern of delay in deciding a significant number of appellate cases over a lengthy period."

Appellate Jobs:

The Washington State Attorney General's Office is hiring an Assistant Attorney General for its Torts Appellate Program.  The division defends state agencies, officials, and employees when sued in tort and in some civil rights matters.

June 3, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, May 16, 2022

Do as I do....

Not too long ago I was driving in the car with both junior associates. I was talking to my spouse on the phone (safely via hands free), and in the course of the conversation I used the "s" word--"stupid." An adorable little 4 year old voice called out from the back seat, "Mommy, we don't say 'stupid.'" To which I said, "you are right, I am so sorry." 

This little episode, which has sadly happened more than once, got me thinking about the advice that judges give attorneys. Judges are often very quick to give excellent advice to attorneys, but then fail to follow their own advice in writing opinions. Now, I know that opinions are different from briefs, but despite these differences, I think that there are some pieces of their own advice that judges should follow.

Advice #1: Be Brief

Just last week I read a story that included advice from Chief Justice John Roberts on keeping briefs brief. When I teach appellate advocacy, I tell my students that the one thing that ALL judges agree on is briefs are too long. But what about judicial opinions? Oh my! I decided to do an informal survey of the most recent opinions posted on appellate court websites. Here is what I have for published or precedential opinions:

While this endeavor is highly unscientific (I am sure the empiricists are cringing), my purpose was to get just a random snapshot. This snapshot produced an average of 31.7 pages. Half of the opinions were over 20 pages. Another snapshot would have different results--easily higher, perhaps lower.

What is the problem with long opinions? Well, Luke Burton, a career clerk on the Eighth Circuit has discussed them here. The problems he lists include increased (1) litigation costs, (2) misinterpretation of opinions, and (3) difficulty for the parties in understanding the decision. While all of these are real problems, I think that two and three should especially catch the attention of judges, which leads me to my second piece of advice that isn't always followed.

Advice #2: Write for your audience.

Judges like to remind brief writers to write for judges and their clerks, not the client and not the partner. Likewise, judges need to remember their audience--the parties. Sure, judicial opinions, especially at the highest court in a jurisdiction, can introduce rules that inform and impact others, but at its core, a judicial opinion seeks to resolve a dispute between two (or more) parties. And while these parties may be sophisticated, they might not be lawyers. Therefore, judicial opinions should be written in a clear, concise manner that is largely devoid of legalese. 

Have you ever visited a doctor and had that person explain your ailment in medical terms that you could not understand? I have, and it is really frustrating. Doctors and lawyers deal with some of the most private, trying, and important matters in a person's life. Just like people should be able to understand their diagnosis from a doctor, parties should be able to read judicial decisions and understand the outcome and reasoning.

Advice #3: Don't hide the ball.

Based off of advice in Winning on Appeal, I always tell my students that their appellate briefs should not be like the latest show they are binge watching on Netflix.  It isn't a murder mystery where we wonder whodunnit or a Regency romance where we ponder who the protagonist will marry. In a brief the error being appealed, the proper legal standard, and the desired result should be perfectly clear and upfront in the brief. Some judges encourage advocates to use a well-written introduction to present these issues. 

Likewise, judges can and should use a well-written introduction to set out the key issues being resolved and the outcome. I remember when NFIB v. Sebelius was decided. When one starts reading that decision the result is not immediately apparent. It takes some deep reading (and nose counting) to figure out what is going on. And while that might be an extreme example, a good trial or appellate opinion sets out clearly in the beginning the issues in the case and the result before diving into the facts and reasoning.

Advice #4: About those footnotes.

Last, but not least, judges need to follow their own advice about footnotes. Just like textual footnotes detract from briefs, they also detract from opinions and contribute to the three problems identified above. Incidentally, I am also team #nocitationfootnotes, but I know that reasonable minds disagree on that point.

I get that many judges, especially trial judges, are working on huge caseload and tight deadlines. I also get that when attorneys don't follow this advice it makes it even harder for judges to do their jobs. But, perhaps modeling this advice will help slowly move the profession into following it as well.

May 16, 2022 in Appellate Advocacy, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (2)

Sunday, April 3, 2022

The Logic of a Courtroom, the Skewing Influence of Politics

As appellate advocates, we honor the rule of law because it depends on logic and reason. When we muster enough support in our favor, we expect a good result, even if we are sometimes disappointed in that expectation.

The rule of law also means that, regardless of an opponent’s money, clout, and influence, a level playing field exists so that the strength of one's arguments made should prevail. At least, that is the theory. And, in most instances, the theory holds, evidenced by the frequency of 9-0 decisions in the Supreme Court, despite vastly different judicial philosophies and ideological divisions among the justices.

Part of the reason the theory holds is that judges are supposed to park their politics at the courthouse door and not inside the courtroom. In one famous example of doing so, Salmon Chase was President Abraham Lincoln’s treasury secretary and had been a driving force behind the Legal Tender Act, which allowed paper money to replace silver or gold as currency and finance the Civil War. When an opening for chief justice came up, one reason Lincoln tapped Chase (besides eliminating a potential presidential rival) was an assumption that he would “sustain what has been done in regard to emancipation and the legal tenders.” It turned out to be a miscalculation. Chase led a slim majority in declaring the act unconstitutional. Some have explained the turnaround as Chase doing his best to serve his client as treasury secretary to draft a valid act and later deciding that his best was still not good enough.

We enjoy stories about judges putting the rule of law above politics, but we also live in an era where the lines between law and politics seem to be dissolving. The line was never as bold and clear as our learning and imagination suggested. Yet, today, the marriage of politics and law appears more evident, particularly in the appellate courts.   

It does not just come with threats of impeachment by disappointed legislators who resent a court’s decision striking down their handiwork.[1] It also comes from the interjection of social and political debates in opinions unrelated to those debates, as well as the politicization of judicial philosophies. Many senators who have announced that they plan to vote in opposition to Supreme Court nominee Ketanji Brown Jackson have explained their rationale for doing so because she would not commit to originalism. Although she testified that she uses originalism, that was not enough. Still, few of those senators who have insisted on an unalloyed commitment to originalism could explain how it works as an interpretive tool behind a simplistic but uninforming definition. They probably hold the false belief that originalism always leads to a single result.

One of the most outspoken originalists on the Court was Justice Antonin Scalia, who liked to describe himself as a “fainthearted originalist.” He held no brief where originalism would lead to an absurd result. He also fashioned his originalism, at times, to fit his preexisting views as in D.C. v. Heller.[2] The fractured version of history he recited to support his conclusion was assailed by two conservative jurists for its selective use of history.[3] Other times his use of the tool led him to a conclusion that the Senate’s originalism fans would probably oppose, such as in the Flag-Burning Cases,[4] where he voted to grant First Amendment protection to that act of protest.

Originalism is no panacea against imbuing interpretation with personal predilections, but advocates must be prepared to provide the necessary fodder for those who follow that approach. Pointedly, it does not always inform the issue. Justice Samuel Alito once teased Scalia for his sometimes-rigid adherence to originalism during oral argument in Brown v. Ent. Merchants Ass’n,[5] where the Court held a California statute that restricted the sale or rental of violent video games did not comport with the First Amendment. After Scalia had posed a question to the advocate, who hesitated in responding, Alito mockingly explained the question: “What Justice Scalia is asking is what did James Madison think about video games?”

Perhaps appellate advocates have always contended with politics in preparing briefs and oral arguments, but the impact of it today seems more acute than at any time in my experience. And the nature of the politics intruding on judicial decision-making also seems more extreme.

 

[1] See, e.g., Haley BeMiller, Jessie Balmert, and Laura A. Bischoff, “Ohio Republicans discussing impeachment of Chief Justice Maureen O'Connor after map ruling,” Columbus Dispatch, Mar. 18, 2022, https://www.dispatch.com/story/news/2022/03/18/ohio-republicans-want-impeach-maureen-oconnor-over-redistricting/7088996001/.

[2] 554 U.S. 570 (2008).

[3] See J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 254 (2009); Richard A. Posner, “The Incoherence of Antonin Scalia,” New Republic (Aug. 24, 2012) (book review), http://www.newrepublic.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism.

[4] Texas v. Johnson, 491 U.S. 397 (1989), and United States v. Eichman, 496 U.S. 310 (1990).

[5] 564 U.S. 786 (2011).

April 3, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, April 1, 2022

Appellate Advocacy Blog Weekly Roundup Friday, April 1, 2022

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send 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

  • In a shocking and unexpected move, a unanimous Supreme Court overturned Marbury v. Madison this afternoon stating that the principle of judicial review was, in fact, unconstitutional.  The sua sponte ruling sent ripples through the legal community with many wondering how the decision may retroactively affect what was consider controlling Supreme Court precedent. See the opinion here.  And reports from The New York Times, CNN, and Fox.

  • The Supreme Court heard argument this week in a case that addresses whether companies can use arbitrations clauses that forbid class claims. At issue is a California labor law that allows attorneys to sue on behalf of groups of workers even where the workers agreed to arbitrate their claims.  The Court posted transcripts and audio of the argument. See reports from Courthouse News Service and The LA Times.

  • This week, the Supreme Court agreed to hear two interesting cases:

    • A case involving the humane treatment of pigs that will hear a challenge to a California law that requires adequate space for breeding pigs to turn around. The challenge argues that the law is an unfair burden on out-of-state farmers. See discussion of the case from The New York Times and The Washington Post.
    • A copyright battle over Andy Warhol’s Prince image. The question is whether Warhol violated copyright of the photographer Lynn Goldsmith when Warhol created his Prince images based on the Goldsmith’s photo. The case addresses the scope of fair use as a defense to copyright infringement. See discussion of the case from NBC News, USA Today, and The New York Times.

State Court Opinions and News

The Louisiana Supreme Court has ruled that Black Lives Matter leader DeRay McKesson could be liable for injuries an officer suffered during a 2016 protest. The court ruled that people who participate in crimes by others can be held liable and that emergency workers injured while on duty are not automatically barred from suing. See ruling and reports from ABA Journal and The Advocate,

April 1, 2022 in Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Tuesday, March 22, 2022

Why Standards of Review Matter

    When the Supreme Court hear oral arguments yesterday in Berger v. North Carolina State Conference of the NAACP, the discussion seemingly centered around dry procedural minutiae and one of the banes of legal writing courses—the appropriate standard of review to answer the question. But the case demonstrates both the importance of those standards of review, and the way that procedural nuance can mask surprisingly broad political and policy subtexts.

    The case concerns North Carolina’s new voter ID law, which the North Carolina NAACP has challenged as unconstitutional. The North Carolina attorney general, a Democrat, is defending the law, but Republican state legislators in North Carolina seek to join the lawsuit to defend the statute’s constitutionality. The legislators argue that the attorney general was not sufficiently representing their interests because he was primarily seeking clarification on which voting law to enforce—without forcefully defending the constitutionality of the new voter ID law.

    Despite the seemingly mundane procedural posture of the case, the political subtext and repercussions are broad. Republicans want to see the voter ID enforced immediately, while Democrats did not support it from the outset. North Carolina’s Democratic governor initially vetoed the voter ID law, and Republican legislators passed it over his veto. Some of those same Republican legislators, now dubious that a Democratic attorney general truly seeks to uphold the voter ID law, believe they must intervene to preserve their interest in asserting that the law is constitutional.

    In a twist that should draw the attention of appellate attorneys and law students, the case may turn on the deference owed to the lower court, and thus the standard of review that ought to apply. Because the lower court ruled against the Republican legislator’s effort to intervene, the Supreme Court must decide whether to follow that lower court decision. Republican legislators argue that the Court should apply de novo review, allowing the Supreme Court to consider the legal issue afresh without any deference to the lower court’s ruling. They claim that the Supreme Court should not simply review the lower court’s ruling for an abuse of discretion—meaning that the lower court’s decision was so arbitrary and capricious as to hardly be a legal ruling at all—because their decision refusing to allow intervention was purely legal, not the kind of fact-driven decision best left to lower courts. But opponents respond that the Republican legislatures seek a ruling of whether their interests are adequately represented by the state attorney general—an inherently fact-specific inquiry to be made by lower courts with a closer relationship to the parties and a better view of the facts involved.

    A debate over standards of review may appear immaterial. Judges, after all, might reach whatever ruling they prefer irrespective of that standard, either by manipulating the standard they apply or by simply applying the correct standard more or less rigorously. But this case illustrates the ways in which the standard of review, when contested, can have a meaningful impact on the outcome of litigation. In many ways, it drove the direction of oral arguments, where Justices wondered how strong an interest the Republican legislators really had and whether other groups of legislators might also want to join the suit. Those questions, though framed as a legal inquiry, also contain a clear factual subtext; they require close examination of the details of every case where such intervention is a possibility. How the Court frames those questions—as either legal inquiries subject to de novo review of factual ones subject to review for an abuse of discretion—seems likely to control the outcome. The case thus provides a ready example of standards of review playing a crucial role in a case with broad political and policy implications.

March 22, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, March 18, 2022

Appellate Advocacy Blog Weekly Roundup Friday, March 18, 2022

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send 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

  • The Supreme Court denied two emergency petitions and allowed to stand court-drawn congressional voting maps in North Carolina and Pennsylvania. In both states, republican gerrymandered maps had been challenged by democrats. However, both the concurrence and the dissent in the North Carolina case indicate that at least four justices are interested in hearing the “exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections.”  See the North Carolina order and a report from The New York Times.

  • The Supreme Court issued a news release concerning the March session. Although the Court will continue to hear arguments in the courtroom, “[o]ut of concern for the health and safety of the public and Supreme Court employees, the Courtroom session will not be open to the public.” Live audio feed will continue to be available on the Court website.

  • SCOTUSblog’s Amy Howe provided a list of the March 2022 session arguments with descriptions of the cases.  Find it here.

Appellate Court Opinions and News

The Fourth Circuit approved a permanent injunction that prevents South Carolina’s removing Planned Parenthood from the list of approved Medicaid providers. The panel found that allowing “the State to disqualify Planned Parenthood would nullify Congress’s manifest intent to provide our less fortunate citizens the opportunity to select a medical provider of their choice, an opportunity that the most fortunate routinely enjoy.” See the order and reports from Bloomberg Law, Reuters, and Courthouse News.

State Court Opinions and News

The Texas Supreme Court has ruled that state regulators cannot enforce the State’s near-total ban on abortions and thus cannot be sued to challenge the law.  See the ruling and reports from Reuters, The New York Times, and Bloomberg News.

March 18, 2022 in Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, March 8, 2022

Lead with Your Strength

We all know that, with some exceptions,[1] we should lead with our strongest argument. But, it’s not enough to lead with our strongest argument—we should lead with our strongest positive argument. By that, I mean the strongest argument for why we should win, not our strongest argument for why the other side should lose. This can be particularly difficult to do when we represent the appellee because the appellant has set out their arguments and our first instinct might be to show why their arguments are wrong. But that’s not leading with our strength, it’s an attempt to show our opponent’s weakness.

Take this example from the appellees' brief in Welling v. Weinfield.[2] In Welling, the Supreme Court of Ohio was asked to recognize the tort of false-light invasion of privacy.[3] After first arguing a procedural issue, that the case had been improvidently granted,[4] the appellees began the substantive argument like this:

As noted by the Wellings in their opening brief to this Court, a majority of the jurisdictions in the United States have adopted the false-light invasion of privacy cause of action. Brief of Appellants at 8. In The Denver Publishing Co. v. Bueno (Colo. 2002), 54 P.3d 893, the Colorado Supreme Court noted that 30 states had adopted the false-light invasion of privacy theory as part of their tort law. Despite that, the Colorado Supreme Court rejected the tort because it overlaps defamation to such a large degree and because its adoption might have a chilling effect on First Amendment freedoms. This Court should do the same.[5]

See how the appellees referred to and agreed with the appellant’s brief (giving appellant’s argument credibility) and then highlighted the strengths of the appellant’s argument:

  • a majority of jurisdictions have adopted the claim;
  • the Colorado Supreme Court noted that thirty states had adopted it.

It’s not until the next to last sentence of that opening paragraphing that we learn of the appellees' positive arguments: the tort overlaps with defamation and recognizing the claim could chill free speech.[6]

Here is how I might re-write the opening paragraph to lead with why the appellees should win:

This Court should reject the invitation to expand Ohio law. Defamation and false-light invasion of privacy claims largely overlap. And recognizing a false-light invasion of privacy claim might chill speech protected by the First Amendment. Instead, the Court should follow the reasoning of the Colorado Supreme Court. That court acknowledged the states that had recognized the claim but refused to do so because of the overlap with defamation and the possible chilling effect on free speech. The Denver Publishing Co. v. Bueno, 54 P.3d 893 (2002).

How would you re-write the opening paragraph to lead with the appellees' positive argument?

[1] An example of when this rule wouldn’t apply is when there is a procedural argument that logic dictates be addressed first.

[2] 866 N.E.2d 1035 (Ohio 2007).

[3] Id. at 1053.

[4] Robert E. WELLING, et al., Appellants, v. Lauri WEINFELD, Appellee., 2006 WL 1860670 (Ohio), 16.

[5] Id. at 17.

[6] Id.

March 8, 2022 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (1)

Saturday, March 5, 2022

Appellate Advocacy Blog Weekly Roundup Saturday, March 5, 2022

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send 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

  • The Supreme Court reversed a lower court decision and upheld the death sentence for Dzhokhar Tsarnaev, one of the two the Boston Marathon bombers. The lower court’s decision had set aside the death sentence finding that the trial judge may have erred in excluding mitigating evidence. In reinstating the sentence, the Supreme Court ruled that Tsarnaev had received the fair trial guaranteed by the Sixth Amendment. See the order and reports from CNN, The Boston Globe, and the Wall Street Journal.

  • This week, the Supreme Court heard argument in what is being touted as the most important environmental case in more than a decade. The case concerns the scope of the Environmental Protection Agency’s regulatory power, specifically, whether the Agency has authority to regulated power plants’ carbon emissions. But the decision may affect federal regulatory power more broadly. The arguments in the case concern the more central question of the scope of federal agencies authority overall. See links to the transcript and audio of the argument and reports from USA Today, Bloomberg, The Wall Street Journal, and The New York Times.

  • The Supreme Court ruled that state-secrets doctrine protects against the disclosure of black-site locations. A Guantánamo detainee sought information concerning his allegations of torture by CIA contractors. The ruling determined that the information could confirm the location of a CIA black site and that the government could therefore assert national security concerns to protect the information. See the order and reports from The New York Times, USA Today, and The Washington Times.

  • In a second state-secrets case, the Supreme Court overturned the Ninth Circuit and ruled that the government could invoke the state-secret doctrine to block claims alleging that the FBI violated the right to the free exercise of religion when it spied on Mosques after 9/11. The decision, which the Court described as “narrow,” does not block or end the lawsuit but sends it back to the Ninth Circuit to determine whether the secret evidence is core to the government’s defense.  See the ruling and reports from The New York Times and The Los Angeles Times.  

Appellate Court Opinions and News

  • The First Circuit has ruled that a Massachusetts judge can be prosecuted for helping an immigrant avoid arrest. The court rejected the argument that the judge enjoyed immunity for actions taken in her official capacity. See the order and reports from the ABA Journal and Reuters.

In other news

  • Vermont Governor Phil Scott appointed Judge Nancy Waples to be the first woman of color to serve on the Vermont Supreme Court. See the news release and a report from The Burlington Free Press

March 5, 2022 in Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, February 22, 2022

Preempting Appellate Issues in Palin v. New York Times

    In the space of two days last week, Sarah Palin lost her libel suit against the New York Times twice. Palin’s claim centered on a New York Times editorial in 2017 that linked Palin’s political rhetoric to the mass shooting that nearly cost representative Gabby Giffords her life. While the jury was deliberating on Monday, Judge Jed S. Rakoff, a senior judge in the Southern District of New York and former prosecutor who has written extensively on the flaws in America’s justice system, announced that he planned to dismiss the suit no matter what verdict the jury might return. Though Rakoff allowed the jury to continue deliberating, he announced his finding that Palin had not met the high standard to show “actual malice” by the newspaper, a requirement for public figures raising libel claims established in 1964’s New York Times Co. v. Sullivan. One day later, the jury agreed, rendering a verdict in favor of the Times that is likely to be appealed, perhaps all the way to the Supreme Court.

    Rakoff’s unusual step came in response to the Times’s motion for a directed verdict, which claimed that reasonable jurors could only conclude that Palin had failed to meet her evidentiary burden to show actual malice on the Times’s part. Such a directed verdict would be effective without any additional word from the jury. Such verdicts typically occur either before the jury begins deliberations or after they have returned a contrary verdict. In the Palin case, Rakoff’s extremely unusual ruling came while the jury was still deliberating. Rakoff justified that decision on the grounds that Palin was likely to appeal, so his ruling might avoid the need for a retrial. Because appellate courts are generally more deferential to jury verdicts, Rakoff’s apparent hope was that his ruling would allow the appellate court to consider the trial process concluded, then decide the appeal solely the legal issue of actual malice. That would prevent the appellate court from remanding for a new trial, which would render the proceedings to date an enormous waste of resources for all parties involved.

    It is no surprise that Judge Rakoff hopes to control the appellate process from this case given its long history in his courtroom. Judge Rakoff initially dismissed Palin’s lawsuit nearly five years earlier, only to have an appellate court reverse his decision and reinstate the case. He may have hoped to avoid the same fate, and thus permitted the jury to reach a verdict even though he was convinced that the suit had no legal merit. But his ruling may have affected jury deliberations nonetheless, undermining the very purpose behind it. After the jury reached its verdict, several jurors informed Judge Rakoff’s clerk that they had seen notifications about the Judge’s ruling on their phones. Though the jurors insisted that those notifications played no role in their decisions, Palin’s legal team is almost certain to seize upon that news in seeking a new trial during the appellate process. Rakoff’s decision thus seems likely to lead to complications on appeal at a minimum, and perhaps even the need for the very resource-intensive retrial he hoped to avoid.

    The case is a microcosm of the desire trial judges often harbor to control the outcome of their cases all the way through the appellate process. Trial judges may genuinely aim to enforce the rule of law without an eye towards the repercussions. But trial judges are also human actors within a legal system. And nobody, judge or not, enjoys hearing from their superiors that they have made a mistake and may need to repeat months or even years of work to correct it.

    Those kinds of cognitive biases are ever present, ever for trained and experienced judges. Those biases are difficult to control, though gains can be made by engaging more deliberative processes and reducing decision making to checklist-style thinking to reduce the impact of these biases. Blind efforts to buttress a given decision against overrule and remand, however, are unlikely to be successful. As the Palin case illustrates, they may even be counter-productive for the well-intentioned judge.

    Judge Rakoff’s judicial legacy is hardly in question. But even he may have succumb to the simple human desire to see an initial decision upheld without question or doubt. And in doing so, he may have done his own decision a disservice, making it far more likely that it will be reversed in the future. That kind of trial judge overreach should be avoided as much as possible.

February 22, 2022 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Legal Writing, Rhetoric, State Appeals Courts | Permalink | Comments (2)

Sunday, February 13, 2022

Skipping the Intermediate Appellate Court

            Some states permit direct appellate review by the state’s highest court in cases where a matter presents a serious opportunity to develop, change, or clarify the law. Where an issue is unresolved, a state or federal statute was declared unconstitutional, or the applicable law is obsolete or unclear, the procedure permits a high court the discretion to take the case, bypassing the intermediate appellate court, and address the question presented. The same may be true for matters of great public significance or where the precedent that will be set will likely govern other cases percolating through the system.

            Despite the many bases for direct appeals, they remain rare and should be used by practitioners sparingly. Direct appeals often have different time requirements and different procedures. Counsel considering a direct appeal needs to pay close attention to the grounds and process when undertaking such an appeal. Counsel must also consider whether seeking review in the intermediate appellate court might provide a good opinion that might enhance the chances for success in the higher court.

            It also helps to have a good sense of the higher court. Unlike other courts that sit in panels, a state’s highest court will usually sit en banc, rather than in a random panel, particularly when the issue qualifies for direct appeal. Knowing who will consider the case allows counsel to review past relevant decisions by those very justices. Knowledge of the justices’ expressed views on the issue’s importance, preferences for what qualifies for direct appeal based on prior rulings, and their familiarity with the underlying issue can help determine when to undertake such a “Hail Mary” by aiming straight to the end zone.

            Also rare, but possible, are direct appeals from a district court to the U.S. Supreme Court. In a recent grant of certiorari in Students for Fair Admissions v. University of North Carolina, No. 21-707, the Court took that case directly from a district court decision, likely because it raised the same issues as the Court chose to hear in a similar action involving Harvard University. The grant of certiorari relied on 28 U.S.C. 1254(1), which allows the Court to grant a petition for a writ of certiorari to review any case that is in the court of appeals, even if that court has not entered a final judgment. See, e.g., United States v. Nixon, 418 U.S. 683, 692 (1974). Under the Supreme Court Rule 11, a petition seeking direct review of a district court decision “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

            Despite that warning that certiorari before judgment is available only sparingly, Professor Steven Vladeck found that the UNC case marked the fourteenth time since February 2019 that the Court has granted a “before judgment” petition. Before that date, it had been fourteen years since the Court last used the procedure. Does this mean that cert before judgment will become more commonplace? There is no reason to assume that that will be the case. Although the Court has shown a greater interest in taking hot-button issues quite recently, we have also had a slew of justices expressing a concern that they are being view as too political. The upshot of those observations, especially once some of these controversial decisions come down, is that the Court is likely to return to take a more low-profile approach to choosing its docket, even if decisions tend to encourage new doctrinal overlays on familiar controversies. On the other hand, the Court could offset its growing use of the “shadow docket” by relying more heavily on cert before judgment to obtain a fuller review of cases.

            If cert before judgment does become a more prominent approach to review in the Court, it may well spawn similar approaches in the states. Although skipping the intermediate court is a more normal procedure in many states, and it would go against the grain of West Virginia newly adopting an intermediate appellate court, it is likely that state supreme court will find the expanded use of the procedure worth a further look.

February 13, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, January 27, 2022

Does Your Choice of Fonts Really Matter?

As a legal writing teacher, I emphasize to my students that pathos in legal writing is important. One aspect of pathos is using the medium to influence the reader to have a favorable view of your writing. In other words, a good legal writer wants a persuasive document to look good in addition to being written well. And part of looking good means following rules, conventions, and traditions that apply in the court to which the writing is addressed. Not everyone agrees on what makes a document look good, and one of the recent battles has been over fonts (yes, we legal writers fight over some interesting things).

Many years ago, of course, appellate advocates typed their documents on a typewriter. Typewritten documents were in either pica or elite type. There simply weren't very many choices to make about how the type would look in a document.

Then came word processing programs. The default font in the early days seemed to be Courier; after all, it looked a lot like type from a typewriter. All you needed to do was open up your word processing program and there it was. Courier felt right, it felt like security.

Courier or Courier New (with maybe a little Times New Roman thrown in) sufficed for many years. Older judges were accustomed to it; it gave them a sense of security, too. But then a new generation of judges showed up--suddenly Courier New wasn't so new anymore. Make it prettier! Make it more readable! Make it so I can read it on a tablet! Those were the clarion calls from on high.

So what font is acceptable? What font is desirable? It really all depends on who you ask, but for all intents and purposes it appears Courier and Courier New have been outlawed or at least relegated to the dust bin of antiquity where old VCR tapes and CDs now reside.

In my home state of North Carolina, the Rules of Appellate Procedure were changed a few years ago to permit only proportionally-spaced fonts with serifs. No more non-proportionally-spaced fonts (we're looking at you, Courier and Courier New). As acceptable examples, the rules mention Constantia and Century. Constantia seems like an interesting choice, but someone making the rules really must like it--a fact that should be kept in mind when writing to the rule-making body known as the North Carolina Supreme Court.

Some studies have shown that fonts with serifs are more readable, but that may not be true for reading on a computer or tablet. Not everyone agrees. In fact, courts like the appellate courts of Connecticut require Arial or Univers fonts, both of which are sans serif fonts and both of which appear to an outsider to be random choices.

The bottom line, again, is that legal writers hoping to persuade an appellate court must follow the rules. Where there are multiple possibilities to choose from, though, the question may come down to whether to use a serif font or a sans serif font. We may not be able to agree about what is best, but we can all agree that there are some fonts that are unprofessional, ugly, or easily recognized as hard to read. Just because a high-powered lawyer might make the ill-advised decision to use Comic Sans for an important letter, for instance, doesn't mean we should use it.

Me, I was always fine with Courier New. But I can roll with the times. And like every advocate, I want my audience at an appellate court to feel good (or at least not be peeved) while reading my brief. Century Schoolbook is my favorite now; if it's good enough for the Supreme Court of the United States, it must be good.

The answer to the question asked in the title for this post is yes, your choice of fonts does matter if it matters to your readers. I've adjusted, and so can you.

But don't even get me started on WordPerfect versus Word.

January 27, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Sunday, January 16, 2022

Arguing in the Age of COVID

    As the pandemic became undeniable and understandings of its infectious nature grew, most courts adjusted to remote arguments, and many trial courts experimented with Zoom juries. In March 2020, I had a live argument in another state. My family, concerned about my well-being, loaded me up with trial-sized hand sanitizer, KN95 masks, and nitrile powder gloves. I recall feeling reassured when my departure airport was empty, only to discover that my connecting airport was a madhouse of largely unmasked travelers. Once in the courtroom, the presiding judge asked everyone to keep social distances, especially from the bench, as well as announced that the courthouse was being closed to the public indefinitely as soon as my oral argument concluded – something that made me wonder whether that decision was a day too late.

            Two months later, I had another oral argument that required a flight and hotel room to attend. Again, well-equipped to do everything that the latest medical advice suggested, I went. The judge immediately advised the attorneys to take off their masks, suggesting that we should have nothing to worry about from co-counsel seated at the table with us. And rather than chance getting on the bad side of the judge, we dutifully complied.

            Most of my arguments since then have taken place in my study at home through Zoom. During one argument before a Seventh Circuit panel, despite taping a sign to my door that alerted my family that I was arguing a case and that no one should enter, I heard the door open. I wondered who could have missed the sign, but remained focused on the judges in the on-screen tiles and my answers to their questions. Only after the argument was over and I had disconnected from the court, did I turn around to see that the door was left open. Turning further, I spotted the culprit – one of our dogs had opened the door and quietly come into the room, hopping up onto her favorite chair to watch the argument. I had not spotted her over my right shoulder but felt sure that the judges had. I wondered whether I may have won some points for her complete silence, knowing that the judges were likely to be understanding about the circumstances of arguments in the age of COVID. At least I did not have to assure them that I was not a cat.

            In another instance, when New Orleans was particularly hard hit, I contacted opposing counsel, who also would have had to travel, about seeing if we could petition the Fifth Circuit about changing the scheduled in-court argument to Zoom. The court kindly accommodated us.

            Today, weariness over remote arguments has set in. In fact, in a recent filing opposing a Zoom trial, defense counsel in a case pending in federal court in California cited “Zoom fatigue” as one reason to grant a continuance to a time when a live trial might be held.[1]

            The availability of vaccines and boosters appears to have convinced many, perhaps prematurely given the spread of the Omicron variant, that the time to appear in person has arrived once again, even if some appellate courts have recently reversed engines and notified counsel that remote arguments will replace their scheduled live arguments over the next few months. I recently had one argument postponed a month because opposing counsel tested positive shortly before the scheduled argument.

            While I have discussed in an earlier post some advice about arguing remotely, the basics of preparation, whether live or remote, remains the same. For most arguments, months have passed since the briefing ended. Counsel needs to review everything in the case: Transcripts, arguments, supporting and conflicting authority. In one U.S. Supreme Court argument I had when no justice had any trial experience, I was asked by a justice just how one of these cases is tried in that particular state. As a purely appellate lawyer, I was an inexperienced at trial as the justices were. Moreover, I was neither admitted in the state from which the case came nor had ever witnessed any of the trial. I said that, based on the transcript, I could only describe how this case was tried and then proceeded to do so. The justices’ fascination with trial meant that it was the longest period I had during oral argument in that case without an interrupting question. The point is that preparation must be comprehensive, even about matters that do not affect the outcome.

            The Supreme Court produces a Guide for Counsel arguing before that court. In it, it relates an anecdote about a commercial free speech case in which counsel, representing a beer company, was asked, “What is the difference between beer and ale?” The inquiry had no substantive effect on the case, but the justice received a knowledgeable answer. As the guide states, counsel “knew the business of his client, and it showed.”[2]

            With comprehensive preparation, counsel can be prepared for an unexpected question that may not go to the merits of the case but enhance credibility – and be well prepared when a scheduled argument switches from live to remote and vice versa.

 

[1] Counsel cited “How to Combat Zoom Fatigue,” Harvard Business Review (April 29, 2020); and “‘Zoom Fatigue’ Is Real. Here’s Why You’re Feeling It, And What You Can Do About It,” News@Northwestern, (May 11, 2020).

[2] Clerk, Supreme Court of the United States, Guide for Counsel, at 7 (Oct. Term 2021).

January 16, 2022 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Sunday, December 19, 2021

What Do You Do When a Superior Court Misses a Conflicting Precedent in a Decision that Affects Your Case?

            Assume as you conduct your legal research that you come up with a decision that says exactly what you are hoping for and that the precedent, though rarely cited, remains good law. As you write, confident that the holding puts you in a strong position to prevail, the very court you are writing for comes out with a decision that states that the court has never endorsed the very proposition your newly discovered precedent establishes. You scour the new opinion to see how they distinguished the case you found, because, even upon a re-reading, it plainly conflicts with the court’s new holding. You find it is absent from the incompatible opinion – and went uncited in the briefs the court relied upon. How do you respectfully tell the court it is wrong?

            I thought about those circumstances when I read the majority opinion in Whole Women’s Health v. Jackson,[1] the case concerning the new “Texas Heartbeat Act,” which authorizes bounties for private litigants who sue those who perform or assist in abortions. In the decision, Justice Gorsuch wrote, “[t]his Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court.”[2]

            The statement made me stop as I read. I realized that the key word to prevent a conflict might be “unqualified.” Still, the thrust of the statement seemed at odds with an older precedent that I have relied upon in the past and recently invoked in a brief. In England v. Louisiana State Bd. of Med. Examiners,[3] the Court wrote that “[t]here are fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept instead a state court’s determination of those claims.” England, then, stands for the proposition that federal rights can be vindicated in federal court, and not be limited to state-court determinations, if federal jurisdictional requirements are satisfied.

            Jackson plainly focused on standing as an obstacle to subject-matter jurisdiction, at least as to some defendants. For that reason, Jackson and England can be reconciled. However, in my hypothetical version of these events, what if the Supreme Court rejected federal jurisdiction because it decided that state court disposition of the case should be sufficient and relied on the absence of a decision like England to reach that conclusion when further research would have shown there was existing precedent?

            An advocate in those circumstances will have several options to consider. First, you may conclude that a state-court decision may indeed be adequate or even preferable. State courts have authority to determine federal questions and are not bound by federal decisions by courts other than the Supreme Court.[4] Still, any federal decisions that are contrary to your position may still have persuasive value or produce some deference in state court where the federal decisions are “numerous and consistent.”[5]

            Another option is to seek to harmonize the two decisions by finding a way to argue that the new decision represented an exceptional situation, an outlier, that can coexist with or be distinguished from the general principle established by your earlier precedent.

            Another option is to argue that the older decision is good law, that the newer decision did not take it into account, and that the court should retain the older precedent. In my hypothetical version of what Jackson could have said, England not only provides an answer to the assumption made in “alternative Jackson” and thereby casts doubt on its reasoning for failing to address existing precedent as though it did not exist. Such an argument would need to point out that other doctrines depend on allowing vindication of federal rights in federal courts, so that more than one rarely cited precedent is at stake. If the court meets in panels, en banc reconsideration may be necessary.

            The bottom line, then, is that an advocate needs to explore options carefully, but still may be able to use that dusty but useful precedent that others forgot existed.

 

[1] No. 21-463, 2021 WL 5855551 (U.S. Dec. 10, 2021).

[2] Id. at *10.

[3] 375 U.S. 411, 415 (1964).

[4] Johnson v. Williams, 568 U.S. 289, 305 (2013). See also, e.g., U.S., ex rel. U.S. Att'ys ex rel. E., W. Districts of Kentucky v. Kentucky Bar Ass’n, 439 S.W.3d 136, 146 (Ky. 2014).

[5] Etcheverry v. Tri–Ag Service, Inc., 993 P.2d 366, 368 (Cal. 2000).

December 19, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, November 21, 2021

Answer the Question

            At the 2021 Summit of the Appellate Judges Education Institute on November 13, Judge James Earl Graves, Jr. of the Fifth Circuit made a plaintive plea: answer the question. After serving for a decade on the Mississippi Supreme Court before assuming his position on the federal appellate court, Graves said that too many advocates fail to follow that simple command. Justice Beth Watkins, who serves on a Texas Court of Appeals, moderated the panel and agreed wholeheartedly that answering the question posed seemed to be a stumbling point for lawyers.

            Graves made his remarks during a discussion of “Top Tips for Top-Notch Oral Argument Answers.” The judge said that counsel will often be so focused on the message crafted in preparation for the argument that they fail to pay sufficient attention to the question or plow over it in order to advance their point. However, it is entirely possible that the framework that the advocate seeks to advance may be secondary to satisfying members of the court on something that struck them as critically important. Satisfying the judge by answering the question and either relating it to the pre-planned argument or pivoting to another topic deemed important to address ought to be counsel’s focus.

            Reading the briefs, Graves said, will likely raise some questions for the judge, including issues that may have arisen in other cases that had come before the judge. Perhaps counsel had not considered the issues raised by the question before – or the judge may be mistaken about its relevance to this case. In either event, the question should be answered.

            In dealing with a mistaken question, panelist Joshua B. Carpenter of Federal Defenders of Western North Carolina suggested a humble approach. He recalled a time when a judge insisted that Carpenter’s point could not be correct given the record evidence about mailboxes. Carpenter responded by gently suggesting that he could not recall mailboxes figuring in the record. The judge, however, continued to insist that the mailbox evidence definitively refuted Carpenter’s claim – until the judge received a note from a law clerk, informing him that the mailbox case was being argued the following week.

            During oral argument earlier this month before the U.S. Supreme Court in New York St. Rifle & Pistol Ass’n, Inc. v. Bruen, a case I covered during my Summit panel on the current Supreme Court term, Deputy Solicitor General Brian Fletcher parried the questions he was asked with impressive aplomb, providing a number of examples of how to answer questions while turning to your own point. The case involved New York’s restrictions on gun licenses, one that most observers believe will be declared unconstitutional and that Fletcher was defending. The case appeared to turn on a combination of the Second Amendment’s text, history, and traditions in the States.

            Early on, Justice Clarence Thomas asked Fletcher how to decide which States’ history and traditions should inform the Court on the proper approach to gun rights, adding “you focus a lot on western states, but the west is different.” Fletcher immediately agreed that the west is different, but indicated that the Court should be “skeptical about a tradition that’s only  reflected in one state, indicating that that was a flaw in his opponent’s argument which relied on “some of the cases exclusively from the antebellum south.” His cases, he added, spanned the country.

            Chief Justice John Roberts questioned Fletcher about why a license to bear arms is justifiable when other Bill of Rights guarantees were not subject to licensure. Fletcher agreed with the initial proposition that most rights do not permit licensing schemes, but then recognized that his opponent, in answer to a question from Justice Brett Kavanaugh, said that the challengers had no quarrel with licensing regimes for guns generally. That stance, Fletcher explained, illustrates that the “Second Amendment has a distinct history and tradition and that the way to be faithful . . . to that history and tradition [is] not to draw analogies to other rights with -- with their own histories and traditions.”

            What makes these answers admirable is that they answered the question but made a point that was consistent with the arguments made in the briefs and even incorporated opponents’ statements made during the oral argument. It took questions from justices likely vote against Fletcher’s position and used them to make a point consistent with the concern voiced by the questioner but turned to the advocate’s advantage. While the New York gun law may not survive this constitutional challenge, Fletcher’s performance provided a classic example of what answering the question should mean.

November 21, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, State Appeals Courts | Permalink | Comments (0)

Monday, September 27, 2021

Judicial Selection & A Divided Nation

Two weeks ago I blogged about Lance B. Wickman's article, Lawyers as Peacemakers, in the most recent issue of the Journal of Appellate Practice & Process. Today, I want to discuss part of Dean Erwin Chemerinsky's article--The Non-United States of America.

Dean Chemerinsky spends the first half of his article positing reasons for the deep partisan divides in our country. He identifies structural aspects of our governmental system, like the Electoral College, as partially responsible. He also looks at the role of the media, former President Trump, and the COVID-19 pandemic. According to Dean Chemerinsky, the "deep partisan divide in the United States" is "the greatest threat to democracy that [our country] has faced" and could lead to "serious talk of secession." Despite these dire words, he remains "an optimist and believe[s] that there is much more that unites the American people than divides us."

In that spirit, he offers one suggestion--"change the method of picking Justices and lower federal court judges to make it less partisan." Dean Chemerinsky points to states like Alaska that have a merit selection process for picking state court judges.  Arizona has something similar. Our Judicial Nominating Commissions take applications for open judicial positions. The Commissions interview candidates and send a bi-partisan list to the governor, who selects a judge from that list. Many merit  selection states have systems modeled after the state of Missouri.

According to Dean Chemerinsky, former President Jimmy Carter used merit-selection panels for judicial vacancies. Dean Chemerinsky recommends that such panels be ideologically diverse and include non-lawyers. These panels would give the president at least two names to fill vacancies, and the president would promise to select from the list. Obviously, this would be a change from how presidents have nominated judicial candidates in the past. Traditionally, presidents rely heavily on the home state senators who are of the same party as the president for names.

Such a panel is an interesting idea. Dean Chemerinsky states that the panels should send "the most qualified individuals" to the president, but that is certainly an objective standard. And Dean Chemerinsky recognizes that presidents would have to voluntarily agree to create such a commission.  As he writes, "my hope is that once a courageous president creates the system, especially for high-profile Supreme Court nominations, political pressure will be great for others to follow the practice of merit selection."

I do think that the merit-selection process has worked well in some states, and it would be interesting to see something similar adopted at the federal level.

September 27, 2021 in Appellate Court Reform, Appellate Justice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Tuesday, September 7, 2021

Professionalism in Legal Writing – Dos & Don’ts, Part V - Point Heading, Summaries, and Transitions

The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing.[1] Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the fifth post in the series.

Do provide appropriate signposts:

  • Do consider using headings and summaries.
  • Do use transitions between sections that guide the reader from one argument to the next, especially in longer pieces of writing.

The Commission on Professionalism asks us to consider using headings and summaries, but there’s nothing to consider, we should use headings and summaries. It is always our goal to make our writing clearer and thus to make our reader’s job easier. Headings and summaries help us do that. Transitions do too. They allow our reader to move seamlessly from one topic to the next

1.    Point headings make our writing better.

Headings (here we’re talking about point headings) make our writing clearer because they show the structure of our writing, convey key points, and create white space. So let’s talk about how to create useful headings.

A.    Point headings are topic sentences.

Point headings serve as the topic sentences of the paragraphs that follow. They tell your reader what you’re going to discuss. Be sure that the paragraphs that follow a point heading, and the sentences within each paragraph, relate directly to the point heading. If they don’t then you need to re-think your point heading or the paragraphs that follow it.

B.    Point headings should be full sentences.

Your point headings should be full sentences and they should convey substantive information. Which of these point headings is better

                1.    Strict Scrutiny.

                2.    The statute creates a class of disfavored speakers, so it is subject to strict-scrutiny review.

The second heading tells the reader the substance they should be learning in the subsequent paragraphs—how the statute creates a class of disfavored speakers and why strict scrutiny applies.

C.    Point heading should look like sentences.

Because point headings are full sentences, they should look like sentences. They should not be written in ALL CAPITAL LETTERS, nor should they be written in Initial Capital Letters. Save those styles for your section headings.

D.    Point headings are not just for the argument section.

Point headings are helpful in the fact section of briefs too. Again, they convey substantive information, show the structure of the fact section, and create white space. Here is an example:

               1.    In 2007 the National Parties negotiated a new collective bargaining agreement that contained a two-tier wage system.

The sentences that follow that point heading explain how and why the National Parties negotiated a two-tier wage structure.

E.    Point headings serve as a check on your analysis.

If you’ve created good point headings, you should be able to look at them and understand the structure of your argument. If you can’t, then you need to re-write your point headings or re-organize your analysis.

F.    Good point headings start with a good outline.

The simplest way to ensure that you’re creating good point headings and that you’ve created a well-reasoned argument is to spend time outlining your brief. You can then turn the points of your outline into point headings.

G.    You should include point headings in your Table of Contents.

Once you’ve written your brief and included good point headings, be sure to include the point headings in your Table of Contents. Doing so allows you to start persuading your reader sooner because they can see the key facts of your case and the key points of your argument just by reading your Table of Contents. Compare these examples:

Example 1:

TOC - Bad

Example 2:

TOC - Good

Good point headings make your writing clearer and allow your reader to follow the structure of your argument. Summaries do too.

2.    Summaries make our writing better.

Summaries should provide a brief overview of what you will discuss. Summaries allow you to orient a reader who is unfamiliar with a topic or issue. They give the reader a base of knowledge from which to work and help them better understand the information that you provide. Think of your summary as your elevator pitch.

After you’ve created good point headings and helpful summaries, think about ways you can transition your reader smoothly from one topic to the next.

3.    Transitions make your writing easier to follow.

A good transition should remind your reader what they just learned and prime them to receive additional information. Good transitions connect the parts of your writing to avoid sudden shifts between topics or arguments. They allow your reader to move smoothly from one subject to the next and show that there is a logical structure and flow to your writing.

Good point headings, summaries, and transitions work together to create a logical flow to your writing. The effort you put into crafting these parts of your brief will make your reader’s work easier and thus help you be a better advocate.

 

[1] https://www.supremecourt.ohio.gov/Publications/AttySvcs/legalWriting.pdf

September 7, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, Tribal Law and Appeals, United States Supreme Court | Permalink | Comments (1)

Sunday, August 29, 2021

What To Do When Faced With Adverse In-Circuit Precedent

In my last post, I reviewed arguments employed in three different Supreme Court briefs seeking reconsideration of three separate precedents. The arguments attempted there in favor of overruling precedent as unworkable are equally applicable to adverse in-circuit precedents.

In the federal circuits, however, the process usually requires two-steps: first, an argument before the usual three-judge panel; and, second, upon the granting of a petition, argument en banc. The double argument occurs because one panel cannot overrule a prior panel’s precedential holding.[1] In the Eleventh Circuit, this practice is known as the “prior panel precedent rule.”[2] Some state courts of appeal follow the same rule.[3] Yet, other states permit one panel to overrule an earlier one on the same issue, but advise that it is an authority that should be exercised reticently.[4]

The Fifth Circuit has dubbed the practice the “rule of orderliness,” which holds that “one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.”[5] It also means that, “to the extent that a more recent case contradicts an older case, the newer language has no effect.”[6]

If an advocate is unable to distinguish the prior precedential holding, part of the argument before the initial panel must suggest the problematic decision is wrong and warrants rehearing en banc for purposes of reconsideration. A panel’s opinion, or even a judge’s dissent, that suggests the precedent was wrongly decided, even when those judges are obliged to follow it, provides a substantial boost to a petition for rehearing en banc.

Still, not every unfavorable in-circuit decision qualifies as controlling precedent. Even where a case is not otherwise distinguishable, it may be possible to characterize the prior decision’s problematic passage as obiter dicta. In those circumstances, the contrarian language “could have been deleted without seriously impairing the analytical foundations of the holding and being peripheral, may not have received the full and careful consideration of the court that uttered it.”[7] For example, if no party briefed and argued the point, the panel was deprived of arguments that might have caused it to avoid the issue or decide it differently. For that reason, there were no analytical foundations, and the dicta is not binding.[8]

State courts, too, hold that dicta is not binding. In California, for example, “dictum is a general argument or observation unnecessary to the decision which has no force as precedent.”[9] Instead, only the ratio decidendi, the “principle or rule which constitutes the ground of the decision,” serves as stare decisis.[10] Under that approach, a “decision is not authority for what is said in the opinion but only for the points actually involved and actually decided.”[11]

Recently, that same issue of what constituted stare decisis came up in the U.S. Supreme Court. In Ramos v. Louisiana,[12] the Court was asked to overrule cases that held the Sixth Amendment right to jury trial did not require a unanimous verdict to convict a defendant of a serious offense. Instead of overruling the earlier precedents, it abrogated them. The majority opinion by Justice Gorsuch denied that the earlier decisions constituted precedent because the result was the product of a fragmented Court. That characterization generated some controversy. Justice Kavanaugh, another member of the majority, vocally treated the prior decision as precedent, but precedent that deserved to be overruled. The dissenters insisted that adherence to stare decisis was necessary, even if they might have reached a different decision if the issue was first being presented.

The bottom line is that there are a variety of tools available to an advocate who finds an adverse precedent in the way of a favorable result. Understanding the concerns that a court has expressed and the rules it follows can provide a blueprint for building that case. And, sometimes, when you notice disagreement within the U.S. Supreme Court about what constitutes binding precedent, a door may open to some arguments a lower appellate court has not previously considered.

 

[1] See, e.g., United States v. Salazar, 987 F.3d 1248, 1254 (10th Cir. 2021).

[2] Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).

[3] See, e.g., Nat'l Med. Imaging, LLC v. Lyon Fin. Servs., Inc., No. 3D20-730, 2020 WL 5228979, at *1 n.2 (Fla. 3d D.C.A. Sept. 2, 2020).

[4] See, e.g., Roberts v. Roberts, 2014 UT App 211, ¶ 44, 335 P.3d 378, 391.

[5] Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

[6] Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 196 n.4 (5th Cir. 2000).

[7] Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004) (internal quotation marks and citation omitted).

[8] Bruce v. Estelle, 536 F.2d 1051, 1059 n.5 (5th Cir. 1976), cert. denied, 429 U.S. 1053 (1977).

[9] United Steel Workers of America v. Bd. of Ed., 162 Cal.App.3d 823, 834 (1984).

[10] Bunch v. Coachella Valley Water Dist., 214 Cal.App.3d 203, 212 (1989).

[11] Childers v. Childers, 74 Cal.App.2d 56, 61  (1946) (emphasis in original).

[12] 140 S. Ct. 1390 (2020).

August 29, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, July 27, 2021

Professionalism in Legal Writing – Dos & Don’ts, Part IV

Professionalism in Legal Writing – Dos & Don’ts, Part IV

The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing.[1] Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the fourth post in the series.

Do adopt a clear and persuasive style:

  • Do put material facts in context.

The facts we select to include in a brief and how we present those facts are important. But which facts should we include, and which should we omit? We must include all legally relevant facts and background facts that are necessary to understand the legally relevant facts. But we also have to present the facts (both good and bad as I discussed in an earlier post) in a way that tells our client’s story effectively and persuasively. And sometimes that means including context or material that makes the story more interesting.

Take this example from a brief filed by now Chief Justice Roberts in State of Alaska v. EPA, No. 02-658:

The Red Dog Mine. For generations, Inupiat Eskimos hunting and fishing in the DeLong Mountains in Northwest Alaska had been aware of orange- and red-stained creek beds in which fish could not survive. In the 1960s, a bush pilot and part-time prospector by the name of Bob Baker noticed striking discolorations in the hills and creek beds of a wide valley in the western DeLongs. Unable to land his plane on the rocky tundra to investigate, Baker alerted the U.S. Geological Survey. Exploration of the area eventually led to the discovery of a wealth of zinc and lead deposits. Although Baker died before the significance of his observations became known, his faithful traveling companion—an Irish Setter who often flew shotgun—was immortalized by a geologist who dubbed the creek Baker had spotted “Red Dog” Creek. Mark Skok, Alaska’s Red Dog Mine: Beating the Odds, Minerals Today, at 8 (June 1991).[2]

The case was about the Clean Air Act, “best available control technology,” and permitting authorities. Adding details about a bush pilot and his dog was a way to make what most would view as a boring case a bit more interesting. And of course, the author tied these details into his argument, at least indirectly, later in the brief.

  • Do write in a professional and dignified manner.

Legal writing is professional writing and thus, we should write in a manner that recognizes the importance of our work as writers; and in a way that recognizes the importance of our primary audience—appellate judges. We shouldn’t write in a way that insults our opponents or the court. We must not include ad hominem attacks or sarcasm in our briefs. Attempts at humor should be avoided too—none of us are as funny as we think we are.

I know some (perhaps many) will disagree, but I think it’s ok to use contractions. They make our writing more conversational and less stilted, but not less professional. And start a sentence with and, but, or, or so now and then. Doing so has the same effect.

  • Do put citations at the end of a sentence.

We must cite the authorities we rely upon, and we must do so each time that we rely upon them. That’s simple enough. There is some debate, however, about whether citations should be placed in footnotes or the text. I think they should be placed in the text for two reasons. First, judges are used to seeing citations in the text not in footnotes and our job is to make the judge’s job easier. By doing something the judge doesn’t expect or isn’t accustomed to, we make their[3] job more difficult. Second, citations convey more information than just where to find an authority. Citations tell us the value of the authority, i.e., is it binding or persuasive, the age of the authority, etc. Of course, there are ways to convey that information and still use footnotes, but it is easier to just include the citation in the text.

  • Do use pinpoint citations when they would be helpful.

They’re always helpful.

 

[1] https://www.supremecourt.ohio.gov/Publications/AttySvcs/legalWriting.pdf

[2] https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf

[3] Yes. I used “their” as a singular pronoun. That’s ok too. https://public.oed.com/blog/a-brief-history-of-singular-they/

July 27, 2021 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing, Rhetoric, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, June 5, 2021

Judicial Opinions & Pop Culture (or, are the Star Wars sequels "mediocre and schlocky")

Earlier this week I received an email from a student with this Ninth Circuit opinion attached. The subject of the email was "Judge Lee and Star Wars," and the student told me to look on page 26 at footnote 5. I was a bit puzzled at first, since the case was about class action settlements. But, when I got to page 26 it was all clear. Here is what Judge Lee wrote,

Under the settlement, ConAgra agreed to refrain from marketing Wesson Oil as “100% Natural.” That sounds great, except that ConAgra already abandoned that strategy in 2017 — two years before the parties hammered out their agreement — for reasons it claims were unrelated to this or any other litigation. Even worse, ConAgra’s promise not to 
use the phrase “100% Natural” on Wesson Oil appears meaningless because ConAgra no longer owns Wesson Oil. In reality, this promise is about as meaningful and enduring
as a proposal in the Final Rose ceremony on the Bachelor. Simply put, Richardson — the new owner of Wesson Oil — can resume using the “100% Natural” label at any time it
wishes, thereby depriving the class of any value theoretically afforded by the injunction. ConAgra thus essentially agreed not to do something over which it lacks the power to do. That is like George Lucas promising no more mediocre and schlocky Star Wars sequels shortly after selling the franchise to Disney. Such a promise would be illusory.5

Footnote 5. As evident by Disney’s production of The Last Jedi and The Rise of Skywalker.

I laughed out loud when I read the paragraph and footnote, but I also was not surprised, since I have known Judge Lee for many years, and he is definitely a fan of Star Wars (and apparently the Bachelor?). Judge Lee's Star Wars analogy has also made the news, especially in the movie and comic spheres, with one headline reading:

U.S. Ninth Circuit Court Declares THE LAST JEDI "Mediocre And Schlocky" In Recent Ruling

Although that headline might stretch the analogy a bit, it did get me thinking--should judges throw pop culture references into their judicial opinions? In my mind, the answer is certainly yes.

Before I defend pop culture references in judicial opinions, let me start with what I assume to be the critique--that it trivializes important disputes. The response is--like any other use of humor--there is certainly a time and a place for pop culture references. There are some cases where pop culture references could seem insensitive or overly trivial, but in other cases, they humanize the judiciary and raise awareness about our court system, which is why I think that they are great!

According to a 2020 survey, only 51% of Americans can name all three branches of government, with 23% unable to name any branch of government. Compare this to the 49% of adults who have seen The Empire Strikes Back. I couldn't find statistics for the number of people who can name the three movies in the original trilogy, but I think that you get my point.  Star Wars is a big business and very well known. If a pop culture reference to Star Wars gets people to think, albeit even briefly, about our federal court system, that reference is a plus in my book.

How common are pop culture references in judicial opinions?  I ran a few searches on Westlaw Edge to see what I could find.  Searching "Star Wars" in all cases brought up 403 hits. In glancing at the top 50 results, most of them have to do with copyright infringement--they aren't using pop culture to make an analogy.  Justice Kagan did make a Star Wars reference in her dissent in  Lockhart v. U.S., stating "Imagine a friend told you that she hoped to meet 'an actor, director, or producer involved with the new Star Wars movie.' You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander. . . . Everyone understands that the modifying phrase—'involved with the new Star Wars movie,' . . . —applies to each term in the preceding list, not just the last." 577 US. 347, 362 (Kagan, J., dissenting).

A search for "Harry Potter" in all cases brought up 284 hits. I looked at the last 84 results, and I found some gems:

  • "Between Marshall's status as the only other person at the defense table and the fact that, by this time, Jenkins had twice previously been shown Marshall's face, Jenkins's in-court identification of Marshall was about as unexpected as the mention of Voldemort in a Harry Potter novel." Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1293 (11th Cir. 2016)
  • "According to plaintiff, goodwill is a fleeting concept, here one instant and gone the next, depending upon a firm's current profit status—much like a Harry Potter wizard who disapparates in bad times and reappears in good." Deseret Mgmt. Corp. v. United States, 112 Fed. Cl. 438, 451 (2013)
  • "In a word, today's decision will not require even depositary banks to hire armies of employees to examine each check like something out of Harry Potter's Gringotts Wizarding Bank. It will require only a minimal level of reasonable care." HH Computer Sys., Inc. v. Pac. City Bank, 231 Cal. App. 4th 221, 240, 179 Cal. Rptr. 3d 689, 703 (2014)
  • "The effect is that the debtor's homestead is subject to the loss of its exemption because the snapshot taken upon filing catches the potential for movement not unlike a photograph from a Harry Potter novel captures the movement of the subjects in the photograph." In re Montemayor, 547 B.R. 684, 701 (Bankr. S.D. Tex. 2016)

So appellate judges--throw in those pop culture references!  Maybe, just maybe, it will increase awareness and interest in the judiciary.

June 5, 2021 in Current Affairs, Federal Appeals Courts, Film, Humor, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)