Appellate Advocacy Blog

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

Monday, October 29, 2018

Making a Murderer, Indian Law, and Habeas Corpus

Recently, habeas corpus has been on my mind.  It is partly because I have started watching season 2 of Making a Murderer.  To me, the most interesting part of the second season is the saga of Brendan Dassey's habeas petition, which is based in part on the involuntariness of his confession.  I found the circumstances around Brendan's confession quite troubling.  Several months ago I spoke at an appellate conference that also featured Steven Drizin, one of Brendan's post-conviction attorneys.  Steven's presentation on false confessions was fascinating.

In season 2 of Making a Murderer, Steven and his colleague Laura Nirider do an excellent job explaining the habeas process in layman's terms.   Because Brendan's conviction was in Wisconsin state court, he cannot prevail on habeas unless he can show that the state court conviction,

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
 
28 U.S.C. § 2254.
 
If Brendan had been convicted in federal court, he would have to show "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . ." 28 U.S.C. § 2255.  
 
While it is hard to win on any type of habeas petition, the state standard is extra deferential to the underlying conviction.  As Steven explains in season 2, the state standard was modified in 1996 in the wake of the Oklahoma City bombing with the passage of the Anti-terrorism and Effective Death Penalty Act.
 
So, what does this have to do with Indian law?  My appellate advocacy students are currently working on their briefs for my class.  Their problem involves a habeas petition from a Tribal court.  Under 25 U.S.C. § 1303, "The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe."  That is it.  This provision was passed in 1968, and it hasn't been modified since.  As Prof. Jordan Gloss notes in the American Indian Law Review, this hasn't been a big issue historically because federal courts have not had to handle a lot of habeas petitions from Tribal courts. This is due, in part, to the limited sentencing capacity that Tribal courts had.  However, in 2013, Congress passed the Violence Against Women Reauthorization Act, which, in part, gave Tribes that opted-in to the Act limited jurisdiction over certain non-Indians who committed acts of dating or domestic violence against Tribal members. See 25 U.S.C. § 1304.  Additionally, the 2010 Tribal Law and Order Act gives tribes additional sentencing power.  Combined, these two acts mean that federal courts will have to handle more habeas petitions from Tribal courts, potentially including Tribal convictions of non-Indians.
 
I agree with Prof. Gloss that Congress is going to need to step in to clarify what the habeas standard will be for Tribal convictions.  If it doesn't, I am sure that the courts will.

October 29, 2018 in Current Affairs, Federal Appeals Courts, Television | Permalink | Comments (0)

Thursday, September 27, 2018

Thinking Thursdays: Using Screenwriting Techniques to Tell More Compelling Stories

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

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

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

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

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

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

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

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

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

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

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

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

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

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