Saturday, August 14, 2021
Every few years, I ask my first-year writing students to analyze a problem on defaults, motions to cure, and the like. When I teach upper-division students, I always include some exercise on malpractice and default judgments. On August 9, the Fifth Circuit gave us a new spin on checking dockets and calendars, as well as our email spam folders, in Rollins v. Home Depot USA, Inc., __ F.4th __ , 2021 WL 3486465 (5th Cir. 2021). See also Debra Cassens Weiss, 5th Circuit warns of “cautionary tale for every attorney” as it refuses to revive lawsuit, ABA Journal (Aug. 11, 2021). The concise opinion also gives us a new example of the persuasion in writing straightforward facts, using clear topic sentences, and following fairly strict CRAC-style organization.
Judge James C. Ho started the opinion with a great “hook,” explaining: “This is a cautionary tale for every attorney who litigates in the era of e-filing." Judge Ho followed with a concise, easy-to-read fact summary, in just a few sentences:
Kevin Rollins brought suit against his employer for personal injury. The employer filed a motion for summary judgment on the eve of the parties’ agreed deadline for dispositive motions. But Rollins’s counsel never saw the electronic notification of that motion. That’s because, by all accounts, his computer’s email system placed that notification in a folder that he does not regularly monitor. Nor did he check the docket after the deadline for dispositive motions had elapsed.
As a result, Rollins did not file an opposition to the summary judgment motion. So the district court subsequently entered judgment against Rollins.
Rollins, __ F.4th at __, 2021 WL 3486465 at *1.
According to the opinion, Rollins was injured while moving a bathtub for his employer, Home Depot. Id. Rollins then sued Home Depot in state court. In one of the less-helpful parts of the opinion, the court uses passive voice—"The case was subsequently removed to federal court”—so we do not know which party asked for removal, but we can presume it was Home Depot.
In the federal district court, counsel for Rollins, Aaron Allison, agreed to receive filings “through the court’s electronic-filing system via the email address he provided, as attorneys typically do in federal courts across the country.” Id. The parties later agreed to a scheduling order requiring that all dispositive motions be filed by May 11, 2020 and providing a 14-day period for responses to any motions.
On May 7, Home Depot filed its motion for summary judgment. Allison explained the e-notification for the summary judgment motion filing “’was inadvertently filtered into a part of Rollins’ counsel’s firm email system listed as “other,” instead of the main email box where all prior filings in the case were received.’” Id. As a result, Allison did not see the electronic notification of Home Depot’s motion, and Home Depot did not mention the motion when Allison “contacted Home Depot’s counsel a few days later to discuss the possibility of a settlement.” Id.
Allison told the ABA Journal his firm had never had a problem with e-filing or with the email system. He noted “opposing counsel never separately notified Allison of the filing and continued settlement talks with the apparent knowledge that Allison wasn’t aware of the pending motion.” See Weiss, 5th Circuit warns of “cautionary tale for every attorney.” In fact, after Allison learned of the granted summary judgment motion, “his firm checked and scanned all emails and found the motion in an ‘obscure part’ of the email system.” Id. The firm tried to open the email, but it had been corrupted. Id.
Nonetheless, “without any response from Rollins, the district court reviewed the pleadings, granted Home Depot’s motion for summary judgment, and entered final judgment on May 27.” Rollins, __ F.4th at __, 2021 WL 3486465 at *1. On June 3, Allison again contacted Home Depot’s counsel to discuss settlement, but Home Depot’s counsel informed him the district court had already entered a final judgment. Id. Allison then filed a FRCP Rule 59(e) motion to alter or amend the court’s judgment against Rollins. The district court denied the motion, and Rollins appealed.
The Court of Appeals explained it would review “only” for an abuse of discretion, using one word to stress the deferential standard of review. Id. at *2. The court then set out the law in the nice, persuasive rule statements we all try to use, starting with phrases like, “But our court has explained” Rule 59(e) motions are for a “narrow purpose.” Judge Ho stated Rule 59(e) is “not for raising arguments” which “could, and should, have been made before the judgment issued” or where there is no intervening change of law. Id.
On the merits, the court began: “To be sure, we do not question the good faith of Rollins’s counsel. But it is not “manifest error to deny relief when failure to file was within [Rollins’s] counsel’s ‘reasonable control.’” Id. Although reasonable minds can disagree on the application of the rules here, the court then succinctly applied its stated rules to Rollins and found no abuse of discretion. The court reasoned “Rollins’s counsel was plainly in the best position to ensure that his own email was working properly—certainly more so than either the district court or Home Depot.” Interestingly, the court placed an affirmative burden of checking online dockets on counsel, even if counsel is not expecting any filings. According to the court, “Rollins’s counsel could have checked the docket after the agreed deadline for dispositive motions had already passed.” Id.
In his interview with the ABA Journal, Allison called the ruling a “‘lawyer beware’ decision.” He and his client are discussing a possible motion for reconsideration en banc, and if that is denied, a cert petition to the U.S. Supreme Court. See Weiss, 5th Circuit warns of “cautionary tale for every attorney.”
I plan to share this opinion with my students, not only for the substantive points on e-filings, but also for the opinion’s lessons in persuasion. And, we can all watch online dockets to see if Rollins decides to move forward.
Saturday, February 13, 2021
While some courts and law schools have returned to a form of in-person proceedings, many of us are still doing our best to represent clients or help students on Zoom. If you are struggling with Zoom, check out Briar Goldberg’s Ted Ideas on how to raise your video skills. Briar Goldberg, Ted Ideas: 7 Zoom mistakes you might still be making, https://ideas.ted.com/7-zoom-mistakes-you-might-still-be-making-and-how-to-raise-your-video-skills/ (Feb 9, 2021).
Additionally, if your spring involves teaching students to write trial or appellate briefs in pairs, Zoom now allows your students to select breakout rooms with their partners. See https://support.zoom.us/hc/en-us/articles/115005769646. I was hesitant to use this feature because I know students cannot always select their own room, especially students using iPads and some Chromebooks. See Clay Gibney, Tips for Zoom Breakout Rooms - Lessons Learned, https://www.sais.org/page/zoom_breakout_rooms (Nov. 2020). Like many Zoom hosts, I avoided the feature, and either spent the significant time needed to pre-assign participants to breakout rooms or let Zoom randomly assign participants to rooms.
However, if you want students to be able to meet and confer with their brief-writing partners during class, even in a larger class, you should give the choose-your-own-breakout-room option a try. I teach writing classes without a “Zoom TA” or IT person in the class, and yet I have sent my students to self-selected breakout rooms for partner meetings. For the best results, assign your student pairs breakout room numbers before class and ask in advance for names of students whose devices do not show the room choices.
Assigning Pair Numbers
When I assigned my students into partner pairs, I listed each pair on an Excel sheet with numbered lines, and saved the sheet to our class Google Drive. Before our first class using the partner meeting breakout rooms, I asked each student to double check the Excel sheet and make sure they knew their pair’s number.
Then, to make creating the rooms quick and simple during class, I did not take the time to name the breakout rooms. I simply asked Zoom to create the same number of self-selecting breakout rooms as my number of student pairs. In other words, for a class of 30 students, I created 15 choose-your-own-breakout rooms numbered 1 to 15.
Dealing with iPads, Chromebooks, and Web Zoom
Early in the semester, I had the students practice choosing their own breakout rooms during a persuasive writing exercise. We learned that about twenty percent of my students could not select their own rooms, either because of their Chromebook or iPad devices, the way they access Zoom, or both. See generally Gibney, Tips for Zoom Breakout Rooms, https://www.sais.org/page/zoom_breakout_rooms, at 2 (explaining students using the Web version of Zoom cannot select their own rooms).
When I let the students know they would need their pair numbers for our next class, I also asked them to notify me before class if their device did not allow them to choose their own breakout rooms. Therefore, I had a handy list and was able to quickly send these students to the proper rooms by manually assigning them.
Several students told me after class that they really enjoyed the time in partner breakout rooms. As much as we wish we could teach partner pairs to write briefs together in person, Zoom’s self-selecting breakout rooms at least allow us the chance to let the students meet together during class.
Monday, February 1, 2021
Two weeks ago I blogged that we were close to releasing Volume 21, Issue 1, of The Journal of Appellate Practice and Process. I am pleased to announce that the issue is now online. There are so many wonderful articles in the issue, which I plan to blog on over the next few weeks.
Since I have already written much on online oral arguments, I thought that I would start with the two pieces that discuss that topic. The first, "Remote Oral Arguments in the Age of Coronavirus: A Blip on the Screen or a Permanent Fixture," written by veteran appellate advocate Margaret McGaughey, is a follow-up from her earlier article entitled, "May it Please the Court--Or Not: Appellate Judges' Preferences and Pet Peeves About Oral Argument." In both articles, Ms. McGaughey conducts numerous interviews of state and federal appellate judges and provides their perspectives on the topics. Her interviewees include Justice Stephen Breyer, Judge David Barron (my property professor), Judge Sandra Lunch, Judge Bruce Selya, Judge William Kayatta, Judge Lipez, former Chief Justice Daniel Wathen, Chief Justice Andrew Mean, Justice Catherine Connors, and the late Chief Justice Ralph Gants. She also interviewed several attorneys who have given remote arguments.
The article is full of great tips, including some tips at the end of setting up your space for remote argument. But, there are two things that really stuck with me in reading the article. The first is how well we all adapted. The judges and the advocates have done what has needed to be done to adapt to the situation. They have learned how to use the technology and they have changed how questions are asked and arguments delivered. Some have even changed what they wear to "court." We are all truly in this together, and we have persevered. This leads to the second thing that struck me--while many judges are eager to return to the physical courtroom, things will never be the same. This new style of remote arguments will remain in some form. How frequently it will be used in the future remains to be seen.
The second article on remote arguments is by one of our bloggers--Judge Pierre Bergeron. Judge Bergeron's article, "COVID-19, Zoom, and Appellate Oral Argument: Is the Future Virtual," also contains judges' thoughts about remote argument. What really stands out to me in Judge Bergeron's article, however, is his passionate defense of oral argument in general. He presents a fascinating discussion of the decline of oral argument and how remote arguments can serve to both revitalize oral argument and meet key access to justice concerns. Virtual arguments, he says, could allow courts to create a "pro bono appointment program that would . . . help provide argument at-bats for aspiring appellate lawyers" by matching them with "underprivileged clients who need quality legal representation." He cites to such a program in Arizona. This idea is genius. I could see law school clients jumping on board too.
Hopefully this new year and the vaccine rollout will see some normalcy return to our appellate courts. But, I hope too that we capitalize on all the technological advancements with remote oral argument to increase access to justice and lower costs for clients.
February 1, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court, Web/Tech | Permalink | Comments (0)
Sunday, December 13, 2020
Tired of online court, school, happy hour, family holidays, and more? Me too. However, we also know some form of virtual court is here to stay, and based on the number of great pointers judges from across the county have shared with us this month, we can all still improve.
Moreover, in reflecting on the tips I’ve seen lately, I was struck by how many of these pointers apply to any argument, in-person or virtual, and how they track what we have long told law students in moot court. As we evolve from a largely in-person court system, where we had some telephonic and online conferences, to our future, which could involve many more electronic appearances, we should not lose sight of those moot court pointers from law school. And for those of us teaching oral advocacy, we should remember to share best practices for preparation and professionalism which will serve our students in any argument, online or in-person.
Recently, Judge Pierre Bergeron shared helpful tips on preparing for oral argument. You can see his blog here: Judge Pierre Bergeron's Tips. He advises counsel to practice, with a moot court if possible, know the record and case law, provide a roadmap of argument points at the beginning, and be especially cognizant of the need to pause periodically “in an effort to invite questions.” Id. These tips apply equally to in-person arguments.
Similarly, Madison Alder’s piece for Bloomberg Law, Wear Pants, Sequester Pets: Five Tips From Judges for Zoom Court, has excellent advice from judges for online arguments and court appearances in general. See Madison Alder, Wear Pants, Sequester Pets (Bloomberg Dec. 8, 2020). As Alder notes, the “virtual venues have worked so well,” some “courts plan on using them long after the virus is gone.” Id. Therefore, all lawyers who appear in court need to be as proficient in online argument as they hopefully are for in-person proceedings.
Online court platforms vary (federal courts often do not use Zoom, for example), just like courthouses, and “’Lawyers should prepare themselves for venues they’re not familiar with,’” said Chief Judge William Johnson of the District New Mexico. See id. Thus, “preparing a presentation ahead of time is still crucial.” Id. Just as in traditional courthouses, counsel should practice standing at a podium or sitting and looking directly at a webcam. See id. I advise my students to distill their oral argument notes to just one piece of paper, supported by one binder of organized cases and record pages to take to the podium, and that format works well online, where paper shuffling can be magnified on Zoom.
Somehow, despite myriad reminders to dress professionally, we still hear frequent complaints from the bench about attorney attire. Alder recommends: “Dressing properly means wearing professional attire from head to toe, not just head to waist.” Id. “’You never know when you’ll need to stand up in a pinch, which can make for an embarrassing moment if you’re wearing shorts,’ Illinois Supreme Court Chief Justice Anne Burke said.” Id. The key: “’Besides the same make-sure-you’re-communicating-well lessons that apply in a courtroom—is remembering that this is a courtroom and a formal proceeding. Zoom can make people less formal,’” Southern District of Texas Chief Judge Lee Rosenthal said. Id.
We teach law school moot court advocates not to read from notes, allowing them to “read the bench” and make eye contact with judges. This lesson matters even more for online arguments, where the format makes true eye contact impossible. To be as present as possible, online lawyers (and students) should “make sure they do things like keeping the dogs in the other room, closing the window if the lawnmower is going, and making sure their children aren’t there,” said Chief Judge Rosenthal. Id.
Finally, we all need to be more attentive to virtual context clues in online arguments. “The virtual platform makes it more important for lawyers to pay attention to the tone of a judge’s voice, Jed Rakoff, a senior judge in the Southern District of New York, said.” Id. Tuning in to a judge’s tone is important for lawyers “’because that’s the main remaining clue as to whether they’re scoring or not,’” Rakoff said. Id. As Eastern District of California Chief Judge Kimberly Mueller explained, “It’s as important as ever to pay attention to the judge’s signals, so if you are talking too long, be ready to wind up.’” Id. And, using Judge Bergeron’s point on pausing to allow questions, online advocates should watch for judges’ body language showing they are about to unmute or ask a question.
In my house, with two adults working full-time online and a high school student taking online classes while managing a Zoom social and extracurricular schedule, we are weary of an online-only world. I know many law students and lawyers feel the same way. But at least we can find a silver lining (in addition to the great commute) from the online court experience, as the skills we must hone for the best online arguments will make us better advocates in-person too.
December 13, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)
Wednesday, July 29, 2020
This has, out of necessity, been a busy summer for the law school advocacy community. Some exciting and important developments this week:
Guidance for Conducting Moot Court Competitions in 2020–21: Throughout this summer, a group of advocacy professors and coaches coordinated by Rob Galloway, the Associate Director of Appellate Advocacy at South Texas College of Law Houston, has met weekly to discuss issues related to running moot court competitions and programs in the COVID era. This week, the group published a comprehensive set of recommendations for administering moot court competitions in 2020–21. The document is signed by 78 advocacy teachers, many of whom also administer interscholastic and intramural competitions. It offers insights complied by three working groups on handling competitions in These Challenging Times. Like the best-practices guidance for courts published recently by the American Association of Appellate Lawyers, the document stresses that competition organizers should strive to bring as much normal as possible into the new normal: make COVID-era competitions as much like what we're used to as we can. But, as those of us who've administered virtual arguments and competitions have discovered, doing this well requires thoughtful adaptation. The document give soup-to-nuts advice on how to adapt competition rules and procedures without digging unduly deeply into the technological weeds. If you or someone you care about runs a moot court competition, I respectfully urge you to read it and to follow up with our group if there's anything we can do to help.
The National Online Moot Court Competition: The pandemic has prompted a consortium of law schools—inspired in part by pioneering efforts in the trial-advocacy community—to create a new moot court tournament. Registration is open now. The registration form is accessible here; the rules here; the proposed competition timeline here. It is especially cool that this competition is built from the ground up as a virtual competition. Schools that register will receive a technology package designed to make sure that all teams compete on a level virtual playing field. The competition's rules and design thoughtfully incorporate the practices I discuss above. This is not surprising; the representatives of the schools sponsoring the tournament were active in producing the guidance. And, more generally, the tournament looks to incorporate general best practices for moot court: advocates will argue in four preliminary rounds and will be guaranteed a large, well-qualified pool of brief scorers and oral argument judges.
The new leaders of the National Association of Legal Advocacy Educators: I posted three weeks ago about the election of officers for this new organization. It is done. The group's prospective members have voted on an excellent slate of candidates. As was inevitable, they have chosen a great board that brings together advocacy professors and coaches with deep and wide-ranging experience:
- President: Rob Galloway, South Texas College of Law Houston
- Vice President: A.J. Bellido de Luna, St. Mary's University School of Law
- Secretary: Megan Chaney, Shepard Broad School of Law–Nova Southeastern University
- Treasurer: Robert Little, Baylor Law School
- Regional Representatives:
- Tim Wilton, Suffolk University Law School
- Joanne Van Dyke, Syracuse University College of Law
- Jodi Hudson, Seton Hall School of Law
- David Johnson, George Washington University School of Law
- Jennifer Franklin, William & Mary Law School (and the Appellate Advocacy Blog)
- Suparna Malempati, Atlanta's John Marshall Law School
- Jennifer Copland, Michigan State University College of Law
- Judge Jim Roberts, Samford University's Cumberland School of Law
- Ana Montelongo, IIT Chicago-Kent College of Law
- Patricia Wilson, Baylor Law School
- Michaelle Tobin, University of Missouri–Kansas City School of Law
- Laura Rose, University of South Dakota Law School
- Judge John Madden IV, University of Denver Sturm College of Law
- Spencer Pahlke, UC Berkeley Law
- Susan Poehls, Loyola Law School
Saturday, July 25, 2020
Tired of seeing yet another post on how to ______ [fill in the blank: teach, write, argue, live] in our new virtual reality? Exhausted from never leaving your home and Zooming all day? Me too.
In fact, I was reluctant to write one more blog on online writing tools. However, my efforts to add new virtual tools to my teaching arsenal introduced me to two peer review software systems I believe can help us in the classroom: Peerceptiv, https://peerceptiv.com/, and Eli Review, https://elireview.com/. These peer review programs make anonymous online feedback easy, and encourage the writers to learn by editing others. They also reminded me how much any law practice can increase attorney writing skills by using peer review. See, e.g., Kwangsu Cho and Charles MacArthur, Learning by Reviewing, 103 J. of Ed. Psych. 73, 84 (Feb. 2011) https://eric.ed.gov/?id=EJ933615
As an of counsel appellate lawyer at a large law firm, I often had the chance to be an “intermediate editor” who reviewed junior lawyers’ briefs before sending them on to the partners. While I had been using informal peer review in my adjunct teaching for a few years at that point, I did not truly see how much editing others’ work makes us better writers until I experienced the phenomenon in practice. When I noticed I was making the same annoying mistakes I’d been correcting as an editor, I knew my work for the junior associates was making me a far better writer. Eli Review has a nice blog post on this “giver’s gain.” https://elireview.com/2017/03/28/givers-gain/.
My positive reviewing experience prompted me to add more ungraded peer review in my teaching and made me an advocate for the review process with clients and supervisors. Like in-house moot court, the practice of adding an intermediate editor is not possible in every situation. However, if you practice in a large firm or agency, consider adding a layer of review by mid-level writers to young attorneys’ work. This review can actually save fees, by shortening partner review time, and can help create better briefs across the board. And if you are in a smaller practice or have no budget for formal peer review, think about the techniques you like in your opponents’ papers, and incorporate those into your own writing.
In the digital classroom, we can use technology to enhance the peer review process. Many thanks to Prof. Tracy Norton of the Touro Law Center for introducing me to Peerceptiv and for being incredibly generous with her time by running a Peerceptiv demo for the LRW community. Similarly, I send thanks to Prof. Brian Larson of the Texas A&M University School of Law, who introduced me to Eli Review and also spent an incredible amount of time helping the LRW community with an Eli Review demo. Neither Prof. Norton or Prof. Larson have any connection to these products, and I also have no affiliation with these companies and am just sharing their information to help others.
From Profs. Norton and Larson, I learned both programs ask students to submit a writing assignment online and then provide feedback on other students’ writing for the same assignment. Students follow a set rubric in their reviews, and instructors can include the quality of the reviews students provide as part of their writing grades. The whole process can be anonymous. Professors using these programs raved about the technical support and positive student feedback from both. Peerceptiv costs students slightly less than Eli Review, and both can be “textbooks” for your classes at less than $30 a year.
The genius in each product is the science and math behind the assessment scores and review prompts. Each product truly helps students grow as writers by combining the established science on peer review and some neat online features. The math and engineering majors in my home called the programs “elegant.”
For example, Peerceptiv has the peers give a grade of 1-7 on the assignment and complete a four-part review. Then, each student grades the reviews he or she received on a 1-7 scale. Peerceptiv then assigns an overall rating for the assignment of 1-7 based on a combination of the student’s writing score and reviewing score. The professor can set the percentages each score is worth, and the prof can also give reviews him/herself and assign a higher level of credit in the grade to his/her review. Peerceptiv docs points when a review or assignment is late. See https://www.peerceptiv.com/why-peerceptiv-overview/#curriculum.
If the Peerceptiv number system seems too much like the dreaded undergraduate “peer grading” to you, consider Eli Review. Instead of assigning a number ranking to a student's writing and reviews, Eli Review asks students to pull the most helpful comments out of their peers’ reviews and make an express revision plan saying how they will incorporate the comments. Eli Review does ask students to rate the quality of the reviews on a 1-5 star basis, with only truly exceptional reviews earning five stars. See https://elireview.com/learn/how/. This level of assessment forces the writer to give better reviews and thereby learn more about writing, but can help avoid concerns about someone other than a professor grading work.
This fall, I will use Eli Review for short writing like simple case illustrations, and then will progress to peer-reviewed trial brief argument sections in the spring. I plan to use Eli Review only for anonymous, ungraded work. My goal is to give students the “aha” moment I had when reviewing briefs as an intermediate editor, and to help them gain the skill of self-diagnosing writing problems.
Thanks for reading another note on online writing tools. I wish you all good health, and a safe trip outside sometime soon too.
Wednesday, July 22, 2020
This week, the American Academy of Appellate Lawyers issued a thoughtful set of best-practice recommendations for courts hearing remote oral argument. As this press release explains, the recommendations are the work of a task force of AAAL fellows with experience in remote oral arguments. The Fellows' guidance is driven by the AAAL's longstanding position—which we've previously discussed here—that "oral argument is, and should remain, an important part of the appellate process."
Notably, the report doesn't embrace remote oral argument as the new normal. Although it acknowledges that, post-pandemic, continued availability of remote options could make argument practical where it might not otherwise be—a good thing—it stresses that remote argument is a pale substitute for in-person argument. So remote argument shouldn't become "an automatic or self-justifying way of doing things when it is no longer necessary." Instead, the report emphasizes bringing normal into the new: a key animating principle is that courts and advocates should strive to make remote oral argument as much like in-person argument as possible.
The suggestions it offers are practical and actionable both for courts and for advocates. The Academy's fellows urge courts to use a video-based platform over an audio-only solution and present experience-driven reasons why. At the same time, the report wisely identifies adequate sound quality as preeminent for participants and listeners. And it offers solid advice about how to achieve that: among other things, it urges advocates and judges to consider environmental factors like room size and features. Small spaces with hard walls might produce echoes. Stuff like curtains and bookshelves help reduce echoes and ambient noise. And so on.
Saturday, July 11, 2020
We are thrilled to welcome Professor Susan Smith Bakhshian of Loyola Law School Los Angeles as our guest author. Susan has taught LRW and doctrinal law for many years at Loyola, where she is a Clinical Professor of Law and Director of Bar Programs. She is the co-author of Clearing the Last Hurdle: Mapping Success on the California Bar Exam. This summer, she taught entirely online using Brightspace and Zoom. You can reach Susan at email@example.com.
Caution Ahead: Breakout Groups Can Fail
Breakout rooms are great. But. Wait for it. They can fail. Break out rooms are terrific for everything from a way to let students chat and get to know each other, to in class exercises and writing assignments. And the experience is usually great.
Breakout rooms are not a substitute for physical classrooms, but they can give students a few minutes to socialize, provide variety in instruction, and accomplish learning objectives.
So when do breakout rooms go wrong? Groups can go wrong a variety of ways. While the tech can fail, which is a new problem, the other failures are nothing new. A student may decline to participate fully. Group dynamics can unravel. Disputes can arise.
An ounce of prevention is worth a pound of cure. Groups need clear instructions to stay on track. Using a slide in class or posting a handout before class goes a long way to making sure students understand that breakout groups are real assignments and not a class break. By posting slides before class, shy or anxious students are able to preview the group assignment and more fully participate in class.
Pop in. Video conference software simulates walking around the room. Once students realize the professor might drop in the group, they stay on track. This feature is especially helpful when I see that the random assignment has created a group of several weaker students or one with too many natural leaders. I usually go to those groups first. Even if all of the groups are doing fine without any help, I also just like to say “hello.”
Require a deliverable. If the groups know going into the exercise that a written product is due or that anyone in the group may be called on, they will stay on task better. Formal and informal deliverables both work well. Ask for each group to craft an email to the professor, require a post, or ask the group to return to the full class ready to answer a question or present their best ideas.
For those who have not tried a breakout room, an easy, but effective assignment is to have the groups make a list of best (and worst) practices for online learning. They have great tips for each other ranging from natural lighting solutions to how to use the “hide my video” feature to get more comfortable being on video. This assignment works as an ice-breaker in an early class or anytime you want to cover professionalism. As attorneys, they will need to be proficient at using video conferencing software, even after a return to more live interaction. A quick mention that job interviews may be online gets everyone in the group more interested in discussing best practices.
Bottom line, breakout groups are flexible and effective in online teaching.
Saturday, June 27, 2020
Moving from Pandemic Emergency Zoom Oral Arguments to True Oral Argument Online: Preparation and Professionalism
In March, we had only hours to transition from in-person teaching and law practice to remote options. As many internet memes show, that led to some memorable court appearances sans pants, from closets and bathrooms. Recently, we’ve been able to step back and assess our remote experiences to see what we can use for better practice and teaching, even as we return to in-person work. I’ve attended several excellent sessions on online teaching, and I send kudos to William & Mary Law for its fantastic two-day Conference for Excellence in Teaching Legal Research & Writing Online. (If you could not attend, you can view asynchronous postings here: https://law.wm.edu/academics/intellectuallife/conferencesandlectures/excellence_online_teaching/index.php.) Like many of you, my inbox is full of invites for even more webinars and conferences I am not able to attend.
Luckily, Jill Wheaton of Dykema Gossett recently wrote a summary of the May 4, 2020 ABA Appellate Judges Council CLE webinar on “Appellate Advocacy in the Age of COVID-19.” The ABA’s program featured judges, a state appellate court chief clerk, and appellate practitioners speaking on how appeals courts will use remote appearances moving forward. As Wheaton explained, the panel presented “thoughts about, and recommendations regarding, telephone or video appellate arguments” and suggested counsel “do everything they can to make a remote argument as much like an in-person argument as possible.” Jill M. Wheaton, Appellate Advocacy in the Age of COVID-19, Appellate Issues--2020 Special Edition 1 (ABA May 27, 2020). Overall, the recommendations for practitioners stressed professionalism in how we approach video appearances. In other words, be prepared and yes, wear pants.
Part of our preparation for oral argument today should include a test run of our technology. Whenever possible, appellate practitioners should do moot courts before oral arguments. Now, we should make our moot courts a test of both online systems and legal arguments. Since many courts already used some type of internal video conferencing before COVID-19—and a few trial and appellate courts allowed video argument on occasion before 2020--the clerks and judges are already familiar with some remote platforms. Id. They expect us to be familiar with the platforms as well. In fact, many courts have videos of past virtual oral arguments online, and counsel can watch the videos as part of their oral argument preparation.
We should also be as professional as possible in every detail of our online appearances. Hopefully, we know to avoid the meme-worthy mistakes of March and April, by dressing in full suits and using a professional-looking digital background or physical space free of clutter and noise for a video appearance. The ABA panel stressed smaller points as well. For example, many courts still expect counsel to rise when the bailiff calls the case, and the panel judges noted they prefer advocates to stand when speaking. Id. at 2. Therefore, consider either using an adjustable desk, so you can stand when speaking but sit when opposing counsel argues, or use a stool so you can stay at eye level. The practitioners on the ABA panel suggested using a stack of books to raise your computer to standing level if needed, and to be sure your camera is on the top of your monitor to help you look directly at the judges during the argument. Id. Finally, counsel should remember they will be on camera for the entire hearing, even when opposing counsel is speaking. Id. Thus, find a way to communicate unobtrusively with co-counsel and your client, if needed.
We all want life to “return to normal,” but some form of remote oral arguments will no doubt remain after COVID-19 leaves. For now, “courts have been forced to become creative to continue to advance their dockets, requiring the bench and bar to become creative as well.” Id. at 3. Hopefully, these tips from the ABA panel can help us all be more creative, prepared and professional for this new normal.
June 27, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)
Tuesday, May 26, 2020
In May, while the world was still trying to adjust to life during quarantine, the Texas Office of Court Administration was hit by a ransomware attack. While the details are still a bit sketchy because of an ongoing investigation, we do know that the State refused to pay the demanded ransom, shut down the infected systems, and has struggled since then to continue its work via alternate channels.
For appellate attorneys, this has been particularly frustrating. The systems that were shut down include some of the case notification mechanisms, so attorneys are finding out via social media whether they won or lost an appeal. In some cases, the court's access to the record appears to have been lost, so advocates are being asked to help provide case information and records back to the court. Throughout it all, Texas courts have somehow managed to not only continue to work but to lead in holding remote oral arguments and hearings and in continuing to push their dockets despite the quarantine and a crippled IT infrastructure.
In a past life, I worked as a systems administrator and technician, and even wore a "white hat" while hacking to test security. So I am familiar with the challenges in preventing ransomware attacks. This post, however, isn't written for the IT crowd. I hope to give some advice to the attorneys and professors who generally ignore such posts, but are often the source of the problem.
First, you need to know that ransomware attacks generally follow a set pattern. The attackers implant software that helps them gain control of a system, usually be encrypting data so it is no longer usable. They then notify the victim of the attack and demand a ransom, usually in bitcoin or another cryptocurrency. If the ransom is paid, they promise to decrypt the data. Sometimes they do, sometimes they do not.
Where do you, the user, fit into this scheme? Usually, you are the point of infection. By taking a few precautions you might prevent the next attack, or help with the restoration that follows.
1. Don't be the Source of the Infection.
Most ransomware is spread by Phishing, or emails that entice you to click a link that then loads the software onto your computer. Your IT department is serious when it asks you not to click on links from outside sources. The same goes for email attachments, and for links sent via text.
Some attacks start with "social engineering," or gaining access to sensitive information from users that can be used to guess passwords. Avoid the social-media posts that ask you cute personal questions and share with your friends. Even if your password isn't related to your date of birth, favorite pet, child's name, or other seemingly harmless bit of data, one of your friends' passwords might well be. Or, the attacker might use that information to personalize an email phishing attack that is just too hard to resist.
Finally, avoid using public wifi, or if you do, use the VPN that your employer has most likely set up for you. This is probably less common now that we are trying to stay in place, but is still a common source of attack.
2. Help Preserve your Data.
If there is an attack, the target is the sensitive data that you hold. Most likely, that data will be locked away and inaccessible for awhile, if not forever. If your firm or court is going to recover, it needs your help.
Make sure that you keep up with backups. And, if you are working from a court's electronic record available online, do yourself (and the court) a favor and download that information rather than just relying on the online version. After suffering data corruption and other issues, I even email myself drafts of briefs as I progress in writing so that nothing is lost. The idea is to keep multiple copies on multiple storage devices, so that if one fails, there is still a way to recover. Some sensitive data will have to be more restricted, but in general, on appeal at least, we are working with public records that can be stored in multiple places.
3. Remember that Confidentiality is a Ethical Responsibility.
Ransomware attacks are up across the board. There are even some healthcare providers that have been targeted, although some of them have been offered "discounts" on the ransom because they are essential service providers. Don't think that you are not a target. More importantly, don't think that your client's confidential information is not a target.
Indeed, law firms are increasingly the target of security intrusions. To protect clients, Comment 8 to Rule 1.1 of the ABA Model Rules imposes a duty of competence that includes keeping abreast of the "benefits and risks associated with relevant technology." Recently, Formal Opinion 483 clarified that the lawyer's duties include both taking all reasonable efforts to protect clients from data breaches and informing them when one occurs.
In the end, protecting client data is the professional responsibility of the attorney. You can't just blindly rely on your IT department or contractor and avoid that responsibility. Instead, you must be aware of the vulnerable world we live in, and take steps to be safe with not just your personal health, but the health of your data as well.
(Image attribution: "Virus" by kai Stachowiak, CC0 public domain license)
Monday, April 27, 2020
Nearly a lifetime ago (ok, it was just a month ago), I posted tips on how to conduct a virtual moot court competition. Since that post we have had some other great posts on remote oral argument and presentation, including these tips from Texas Supreme Court Justice Eva Guzman.
We held the final round of our moot court competition on April 16. Based on that experience, and a few other things I learned along the way, I thought I would offer my final thoughts and tips on virtual moot court competitions, in case we are all doing this again in the fall.
(1) Stagger start times. For our competition, we typically had two separate panels of three judges. Each panel heard two arguments--one starting at 5:30 pm and one starting at 6:30 pm. In my earlier suggestions, I recommended having separate Zoom links for each argument even if the panel was the same. That definitely worked well. But, if I could do it over, I would have had one panel start either 15 minutes earlier or 15 minutes later than the other panel. Why? Well, I "zoomed" into the first argument for each panel, just to make sure that the judges were present and that there weren't any questions. I ended up having one Zoom open on my laptop and one open on my tablet. This was a lot to manage, especially if there were issues that needed to be resolved. A 15 minute staggered start time would have alleviated some of my stress.
(2) Have back-ups. I wish that I had designated a back-up bailiff and judge for each round. We only had one judge who wasn't able to make it, but we did have bailiff sound/video issues. I was able to get those issues resolved with minimal delay, but having a designated back-up would have been even easier.
(3) Develop an online scoring survey. We ask our judges to fill out a fairly detailed score sheet. I take the scores and enter them into a complicated spreadsheet that incorporates the judges' scores and the student's brief score. When we have an in-person competition, I can look at the score sheets right away and identify anything that isn't filled out correctly. For an online competition, I had to wait to receive the score sheets. Then, if there were any problems, I had to get in touch with the judges. This wasn't an issue with the early rounds, but by the eliminate rounds, I needed to notify the students advancing quite promptly. If we do this again, I will work with our IT department to develop some sort of online tool that the judges fill out instead. This would hopefully help me get the scores sooner, and also ensure that the score sheets are completely filled out.
In addition to these general points, here are a few points from the final round:
(1) Use and circulate a background. The version of Zoom on my home laptop allows me to use a background without a green screen. I wish that I had circulated a background to the students and judges to use to make it a little more uniform.
(2) Figure out an online timer. I didn't use an online timer. Rather, my plan was to hold up time cards. I regret that choice. The time cards didn't show up with the background, so I ended up holding up fingers instead. I wish that I had tested the time cards to know that they wouldn't work. Then I would have definitely figured out how to put a small clock on the screen.
(3) Expect the unexpected (or be sure to lock your office door). Our final round started at 5:30 pm on April 16. I had told my spouse in the weeks leading up to the final argument that he would be on toddler duty all night long. I ordered dinner to be delivered, and reiterated to him right before the round began that I was unavailable. Well, as luck would have it, at about 5:50 pm my very tall, just turned 2 year old discovered how to open doors. And, as I am sure that you have guessed, the first door that he opened was the one right into my office as the Respondent was arguing. My microphone was muted, and the background kept him mostly hidden, but he was still a bit visible (as was my husband who, with a look of horror on his face, tried to quickly remove him from the scene). In hindsight, it was pretty humorous. I wasn't able to keep a poker face on while it happened, which I felt bad about. Now I know to lock my office door if I don't want to be disturbed.
Monday, April 20, 2020
I’m a Houstonian, so today’s below zero oil prices , a first from reports I’ve seen, have been top of mind as I work from my dining room table during the COVID-19 pandemic. That entire last sentence makes my head spin. Buyers paying sellers not to deliver oil. It’s historic. Just four months ago we were looking at the start of a new decade, full of hope. Now, even as I look out my window at the blooming flowers and see all the signs of spring (or early summer here in Houston), I wonder will my family be okay? My students, friends, and colleagues? My city? Our country? How much will institutions have to change? What will the world look like when it’s over?
As much as I love studying history, living through it is painful. Some of the historic events we are seeing, COVID-19 death rates topping the cause of death, record unemployment, speak of incredible individual suffering. Other historic changes are being forced upon institutions slow to change.
Over my last several posts, I’ve followed the Supreme Court’s postponement of Oral Arguments, then the holding pattern that arguments this month and next were in. Finally, on April 13, 2020 the Court issued a release stating that 13 cases would be heard by telephone. Here is an excellent discussion of the Court’s pivot.
As we saw in last week’s post by Texas Supreme Court Justice Eva Guzman, other appellate courts have moved oral arguments online with success. Interestingly, the Supreme Court has decided to do its arguments telephonically, despite the video conferencing technology that is readily available and being used in other courts around the country. As Amy Howe points out “They may have decided to go with remote arguments by teleconference in the short term, despite the potential effect on the dynamics of the arguments, because they would rather live with the longer-term implications – live audio versus live video – of that choice.” I’m interested to see how well the justices avoid talking over each other and what impact the format has on the advocates. As we’ve all probably seen in our own Zoom meetings, people talk on top of each other over video conference, too, so video conferencing may not solve much on that account.
On the whole, the Court’s shift to having some form of remote oral argument is a big one. It was likely a difficult decision, but it was a necessary one. In a time of great uncertainty, knowing that our highest court is operational and willing to decide the complex and important cases that come before can give some reassurance. It’s a signal that even though it isn’t business as usual, business is getting done.
Monday, April 13, 2020
We are thrilled to welcome Justice Eva Guzman of the Texas Supreme Court as our guest author. Justice Guzman has served on the Texas Supreme Court since 2009. Her Court recently held Zoom oral arguments. Here are her thoughts on the Zoom argument experience.
The Covid‑19 crisis impacts our everyday existence to an unprecedented degree. But the work courts do must continue. The dedicated judges of the Texas judiciary have united to address novel challenges in novel ways. And at a time of great uncertainty and turmoil, the Texas bar has also stepped up to meet client needs. Social media has played a vital role in disseminating information to the public and the bar in an evolving legal landscape. In different ways, #We’reInThisTogether.
#AppellateTwitter has been a positive space for lawyers and judges to share information, ideas, and practice tips. So, with the Texas Supreme Court’s first‑ever web-based oral arguments looming, I leveraged the #AppellateTwitter community for ideas on best practices. With those arguments successfully in the history books, I will repay the favor with a few tips of my own for the bench and bar.
Preparation is key. On our end, Clerk of the Court Blake Hawthorne, OCA Director David Slayton, and an OCA team led by Casey Kennedy worked tirelessly to make sure every detail was just right—from security to backgrounds, timers, court announcements, monitoring of the argument itself and more. The arguments were relatively seamless. Before the big day, Blake met with the lawyers in each case via Zoom to ensure their familiarity with the technology, lighting, backgrounds, and audio and to answer any questions. I also strongly encourage advocates to practice their argument via Zoom to work through any kinks. If possible, the justices should also test the program by gathering on the platform a day or so before the argument to ensure familiarity with the process. Practice makes perfect!
Zoom arguments require different pacing. If possible, advocates should pause in between their points to allow for questions. Judges could signal they are about to ask a question by unmuting their mics, moving closer to the computer camera, and addressing counsel by name before asking a question. Speaking over each other happens in live arguments, but the nature of video conferencing makes it more awkward.
Don’t forget the details.
- Choose an appropriate background or location. Our judges used a uniform background to help set the tone.
- Fully charge your battery and use a power cord. Batteries discharge quickly while using video applications.
- Maximize internet connectivity to avoid dropping off mid‑argument. Disengaging other household devices from wifi is helpful but may prove difficult with so many children distance learning these days.
Finally, don’t forget about time management. Blake Hawthorne’s inclusion of a screen for the “timer” was ingenious, and having a set time for judges and participants to log into their waiting rooms was critical to staying on schedule.
Monday, March 23, 2020
In the wake of the COVID-19 outbreak, Arizona Law decided to move our 2L/3L intramural moot court competition online. Because our university's announcement about moving to online classes came during spring break, we determined that students who had traveled home for spring break would probably want to stay there to complete classes. Therefore, we needed an option to allow students to conduct arguments remotely.
While our competition is rather small, it is important! The winners go on to represent our school at the ABA's national appellate advocacy competition.
While our competition rounds start later this week, for the past several days our moot court board has been hosting practice rounds via Zoom. I thought it might be helpful to other schools if I shared some tips for creating the competition and for running the rounds.
Competition structure: Each round consists of three judges, a bailiff, and two advocates. The bailiff is responsible for creating the Zoom meeting link, disseminating it to participants, and keeping time for the round. I have asked the bailiffs to list me as a co-host for the round in case of an emergency. As soon as all participants are in the meeting, the bailiff will create break-out rooms for the advocates and the judges. You can find more information about Zoom breakout rooms here. The breakout rooms allow the judges to ask the bailiff any questions before the round begins. They also allow the judges to deliberate after the round.
Although the judges preside over two consecutive rounds, we are creating a Zoom link for each separate round. This prevents the second group of advocates from disrupting the end of the first argument.
Tips for judges: On Friday, I asked our moot court board what challenges they had seen in running the practice rooms. They had some GREAT tips for judges to help make rounds run smoothly.
- Technology Tips
- Be sure to keep your microphone muted when you are not talking.
- Don't forget to unmute when you want to talk.
- I think that the above two points are the cardinal rules for any and all Zoom meetings.
- Consider wearing a headset or earbuds to cut out background noise and to allow yourself to hear and be heard better.
- Try to minimize Internet usage in your house during the argument. Your connection will be better if your kids aren't streaming Disney+ while you are trying to judge (or argue!) a round.
- When I am teaching an online class I try to close everything on my computer but Zoom and my notes. I don't want loud email notifications during my class.
- Use gallery view on Zoom to better see everyone.
- Setting Tips
- Be mindful of the lighting. Back lighting will make you hard to see. Front lighting will help you appear clearer.
- Be sure that there is nothing distracting behind you (or in the room with you!). My cats get locked out of my office during most meetings.
- Argument Mechanics
- Don't mark off for a poor sound connection. Students have various levels of Internet service.
- Also, don't mark off for lack of professional attire. Many of our students went home for spring break not knowing that they would be staying home indefinitely while the whole world shut down. Now, as stores shut down, they might not have the ability to get professional clothes in a timely manner.
- Don't be afraid to interrupt! And don't be offended if students slightly talk over you. Given the lag with online communications, some amount of interruption is inevitable.
- Try to lean forward, raise your finger, or something to signify to the advocates that you are trying to ask a question.
- But please ask questions! This makes the students' experience so much better!
- Don't be offended if students ask for clarification.
Tips for Participants
- Read the judge tips--many of those apply to you!
- Use gallery view to see all judges and the bailiffs. Watch carefully for social cues that indicate the judge has a question, like leaning forward. If you see such a cue, pause.
- Dress as professionally as you can in the situation. If you don't have a suit (or at least a jacket) try to wear something neutral. Now isn't the time to pull out your "taco cat shirt." (sorry, I love my taco cat shirt).
- Be mindful of your background. You don't want the judges asking you about the poster for your favorite political candidate that is hanging the background.
- Have fun and be patient! COVID-19 is fundamentally changing how courts operate. Some of this is good. It is time for courts to get up to speed on technology and offer more video/telephonic hearings. But, these types of proceedings require adjustment by everyone involved. Your video moot court experience will be a valuable one.
Good luck to all participants, and we here at the Appellate Advocacy Blog hope that you stay safe and healthy!
Saturday, March 21, 2020
I hope everyone is staying safe as we navigate our new COVID-19 reality. In response to the virus, some law schools are canceling oral arguments and moot courts, while others are considering moving arguments online.
At Pepperdine Caruso School of Law, we just successfully held the preliminary rounds of our annual first-year moot court competition via Zoom. We are one the first schools to take such a large tournament--with multiple levels of rounds and cash prizes--online. As I helped move us to an online format in one crazy week, so many people inside and outside of Pepperdine gave me incredible support. In an effort to pay that support forward, I am sharing our process here. I hope our lessons can help other schools and moot court competitions make this transition. Our experience was very positive. The students are grateful we gave them a formal oral argument opportunity, and many sent thank you emails and even fun Zoom screen shots to us.
In practice, many of us have appeared via video or phone for short hearings, and even for appellate oral arguments. See https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000995 (video and audio recordings of the Ninth Circuit argument in Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019), where Judge Wardlaw appeared via Zoom). Currently, courts all over the country are holding their oral arguments online. See, e.g., https://www.courts.ca.gov/2dca.htm (California Court of Appeal website noting: “Counsel will appear remotely via video conference, by telephone conference, or by other electronic means as available and arranged by the Clerk's Office”).
We knew we wanted to give our students the traditional moot court experience in these new circumstances, and we chose to conduct arguments using Zoom. We made one major change from the past, as we decided to let students opt out of the arguments to help students who had to leave our dorms quickly or who were otherwise struggling. Happily, about half of our first-year students still chose to participate.
We usually have two teams of two advocates each, or four students, argue in each room of our preliminary argument rounds. With about 90 students arguing this year, we placed 4 students and 2 judges in each of our 23 Zoom "courtrooms."
To run courtrooms at more or less the same time, we needed 23 Zoom host judges who could create Zoom meetings open to anyone with the links. These judges also kept time, though we had the students run timers on their phones too. We suggested on-screen timers shared to the whole courtroom, but the students were concerned the timers would take too much screen space, even with Zoom’s side-by-side view.
Once we identified trusted members of our community to be the Zoom host judges, we created and shared a step-by-step guide for making an open Zoom link. We asked hosts to name their meetings "Courtroom One 4:15," and so on. We then collected the hosts' Zoom links and added them to our Google Sheet listing all the students, courtrooms, and argument times. We shared the sheet with the courtroom assignments and links to all of our first-year competitors.
We had great support from our faculty, who joined some Moot Court Team members and Law Review students, as well as a few alums, to be our roughly 40 judges. Some judges helped with multiple rounds, and many judges told us this was almost as fun as in-person arguments.
We ran three preliminary rounds, to spread out the ability for our Moot Court Board and me to “Zoom in” to meetings and help as needed. We used ten courtrooms each during two evening rounds, and we needed to pop in to only two courtrooms to help. The next morning, our three courtrooms ran without a hitch. Having trusted judges as hosts really helped, and we recommend this approach.
We made our score sheet into a Google Form for the judges. It was fun to watch the scores roll in after the rounds. Moreover, our competition co-chairs had a spreadsheet right away with the score sheet data. These chairs could quickly identify our top four teams for the semi-final round, unlike when they type in scores from paper forms.
We will have four teams in our semi-final round Monday night, and then the top two will go to our final round Wednesday night. We will share the Zoom link for our final round courtroom with our whole school, and we will have sitting judges serving on our final round bench. We made the judges a separate deliberation room Zoom meeting, to be doubly sure their voting discussion will be confidential.
In our law school virtual classrooms today, we can still give our students a traditional first-year highlight by moving oral arguments online. Many of our courts are doing the same thing, and after holding these successful digital arguments at Pepperdine, I can promise you will be glad you saved moot court by moving online too.
Wednesday, January 29, 2020
The record on appeal includes “original papers and exhibits filed in the district court,” a “transcript of the proceedings” from the district court, and a “certified copy of the docket entries.”1 Appellate courts across the country have similar rules. The trial lawyer works hard to present evidence to support the client’s case. The lawyer also works hard to create and present effective demonstrative evidence. Charts printed on large boards may be used to display data and other information supporting witness testimony. Physical models may represent a forest or the seabed and be used by an expert to explain testimony about run off or contamination. And more and more often, in place of these physical charts and models, electronic presentations may be used to demonstrate this information. A witness may testify while reviewing a video of a surgery or other procedure. Models may be shown electronically, the advantage being that the models can be quickly modified or added to as a person is testifying to demonstrate the testimony. These are all effective ways of delivering information to the jury and the court.
One of the challenges for the lawyer after trying a case with demonstrative evidence includes ensuring that these exhibits, essential to the case at trial, are accessible in forms such that they can be easily transferred to and reviewed by an appellate court, should there be an appeal. Appellate courts prefer to review information in electronic form or paper form; bulky exhibits will not ordinarily be part of the appellate court’s review.2 Thus, the trial lawyer should consider photographing bulky exhibits and entering such photographs into the record so that they can be considered by the appellate court. Information presented electronically should also be included in the record, either by printing and introducing the information in its paper form or by ensuring that the electronic version is preserved either on a flash drive or in an electronic record or transcript created by the court reporter. If the electronic exhibits are manipulated or otherwise changed as part of the testimony, the lawyer must be sure that all versions of what is presented are captured for the record.
As technology evolves, lawyers need to adapt to ensure that their exhibits are in forms and on media that will be accessible to the appellate courts. Lawyers must also ensure that all exhibits are properly identified in the record and that the record is clear about which exhibits were entered and not entered into evidence. Lawyers must abide by procedural rules and local court rules regarding these issues, of course. Moreover, they must think and act strategically to guarantee that their exhibits will be considered by the trial and the appellate courts. Lawyers should not rely on court staff to manage this information.
1 Fed. R. App. P. 10(a).
Thursday, November 14, 2019
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
After a hiatus, the Rhaw Bar is back to explore lawyer digital public commentary and raise some initial questions about lawyers engaging in digital rhetoric.
In Formal Ethics Opinion No. 480, issued in the Spring of 2018, the American Bar Association Standing Committee on Ethics and Professional Responsibility considered for the first time how a blogging lawyer must treat the confidentiality of client information. In deciding that the confidentiality rules applied to internet blogging, the Committee identified a category of lawyer speech it called “communicat[ion] about legal topics in public commentary.” The Committee recognized that while lawyers have historically “comment[ed] on legal topics in various formats” through “educational programs” and “articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews,” the “newest format [for comments] is online publications such as blogs, listserves [sic], online articles, website posting, and brief online statements such as microblogs (such as Twitter®).” The Committee said that “[o]nline public commentary provides a way to share knowledge, opinions, experiences, and news.”
Although the point of this opinion was not necessarily to identify a new cateogry of legal writing but instead to warn lawyers that their obligations of confidentiality extend to their non-client-centered public speech, the opinion has the secondary effect of raising two questions. First, is a lawyer's digital public commentary a unique genre of legal writing? And, if it is, what are the rhetorical possibilities for and problems of this form?
I'm going to make the case that writing public commentary--whether digital or not--is a unique genre of legal writing. First, writing public commentary to influence thought and discourse on legal topics is decidedly less client-centered than other, more traditional forms of legal writing. Writing public commentary is more connected to the lawyer's role as a "public citizen with a special responsibility for justice" than it is to the lawyer's role as a representative of clients. Both of these roles are identified (along with others) in the Preamble to the Model Rules of Professional Conduct (most if not all states have adopted the Preamble's language).
Second, the idea of the lawyer speaking publicly is implicit in what the Preamble says about the lawyer-as-citizen role. The Preamble directs that “a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law[,] and work to strengthen legal education.” The Preamble further offers that a lawyer should “further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” Both of these activities--cultivating knowledge and furthering public understanding--require communication with the public, not exclusively with courts, clients, or opposing parties in private and semi-private transactions. And if the public is now digital, it makes sense for the lawyer to communicate with that audience digitally.
So, I think the Committee was right to expressly identify "public commentary" as something different from the other forms of writing lawyers do. And although lawyers making public commentary is an old phenomenon, the Committee rightly recognized that the "digital" is new.
The digital information and arguments lawyers present to the public about legal matters of collective concern are a form of "digital rhetoric," rhetoric that is electronic or computerized. While digital rhetoric has characteristics in common with other forms of rhetoric, it also has some unique features. Two of those features are circulation and fragmentation.
Circulation refers to the way a message moves from audience to audience across space and time. The rapid velocity at which messages circulate is perhaps the defining characteristic of the digital environment. In the past, messages had to be shared face-to-face or through print documents physically sent from one person to another. (Think of the idea of the "circulation" of a newspaper, referring to the measurement of how many readers a newspaper had.) Message circulation increased and accelerated with television and radio. But, even then, gatekeepers controlled the amount, speed, and movement of information via those media. With the internet, however, both the speed and range of message circulation has increased again. That is, a message can find itself instantly anywhere in the world, be subject to minimal gatekeeping (at least in free societies), be seen by limitless audiences, and be responded to by those audiences instantaneously.
Fragmentation means that a digital message can be broken into smaller pieces and those fragments can be reused, repurposed, or reformed in other digital messages. That is, when composing messages in and for internet spaces, the resources of invention come not only from one's own internal thoughts but also from mixing and remixing what can be found in other messages already in circulation. In the digital world, fragmentation is more common and more frequent than with messages that appear in print, for example. This means that online speakers and audiences have more resources for thought and argument than in other contexts but at the same time may face more difficulty in making sense of messages that have been mashed and mixed in ways not originally anticipated.
So, if lawyers’ online public commentary is both a unique genre of legal writing and a digital rhetoric, what questions might we ask about the challenges and opportunities digital legal commentary presents?
First, we might ask questions about the resources available to lawyers in the digital space. What methods and sources, unique to digital rhetoric, are available to lawyers who want to be commentators in digital spaces? Are/should any of those methods be ethically off limits to lawyers? Conversely, how might we adapt traditional rhetorical resources and approaches to apply to digital public commentary about the law? For example, how do our traditional ideas about effective organization, style, and delivery apply in the digital space?
Second, we might ask questions about the quality of lawyers’ messages and the risks posed by message fragmentation and rapid circulation. What concerns for accuracy and influence of the lawyer's message do rapid circulation and fragmentation present for the lawyer? Is misuse and misinterpretation of message fragments inevitable? If a lawyer's commentary on a legal issue is broken apart and is re-used in ways the lawyer did not foresee, what are the ethical and rhetorical implications for the lawyer? How do lawyers influence the limitless audiences that may encounter all or fragments of the lawyer's message?
Finally, we might ask questions about the a lawyers' duties in the context of digital rhetoric. If lawyers are supposed to be public-citizens educating the public on legal issues, do lawyers have an obligation, not just an opportunity, to use digital rhetoric for this purpose? Must lawyers be rhetorically "competent" in digital public commentary, and, if so, what does fulfilling that duty look like?
These questions demonstrate that the digital space presents new challenges and opportunities for lawyers as well as new ways of thinking about what what forms of persuasion are effective and appropriate for legal commentary in a digital world. These questions are worth thinking (and writing) about as digital communication spaces become even more prevalent and lawyers participate in them more. Your thoughts are welcome in the comments below.
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at firstname.lastname@example.org.
Saturday, November 2, 2019
Fall is in the air (well, maybe not here in Los Angeles), and that means we are in the part of the 1L year when many law students across the country are doing their first in-depth legal research. Thus, we are also at the time when many writing professors, like me, are looking for a great list of new, preferably free, AI research tools. Our students see plenty of services affiliated with the legacy databases, but too many do not learn much about the world beyond Lexis and Westlaw, except possibly GoogleScholar. As new lawyers, especially if they start in small or solo practices, they will need access to free tools.
Similarly, appellate practitioners with firm or agency affiliations might have access to Casetext, which will scan briefs and suggest missing case authority, Ravel (now part of Lexis), which uses AI to create “case law maps,” Fastcase, and more. Some solo practitioners, however, cannot afford even the lower-priced Casetext, and need free AI assistance. See generally Tom Goldstein, SCOTUSblog is partnering with Casetext, SCOTUSblog (Feb. 28, 2019, 12:00 PM), partnering-with-casetext (noting benefits and low cost of Casetext).
There are many excellent lists and comparisons of fee-based (and even some free) AI programs for law firms, far beyond the early comparisons of document scanners for discovery. See, e.g., Jan Bissett and Margi Heinen, EVOLVING RESEARCH: Habits, Skills, and Technology, 98 Mich. Bar. J. 41 (May 2019); https://www.lawsitesblog.com. For free AI services, however, some excellent explanations are in the amicus briefs in Georgia v. Public.Resource.org, Inc., 906 F.3d 1229 (11th Cir. 2018), cert. granted, __ U.S. __, 139 S. Ct. 2746 (June 24, 2019).
In Georgia v. Public.Resource.org, the Eleventh Circuit ruled the state-created annotations to Georgia’s statutes are not protected by copyright law, and reversed summary judgment for the State on its copyright claims against a public interest provider of free legal content, Public.Resource.org. According to the Eleventh Circuit, the annotations to the Code were “created by Georgia’s legislators in the exercise of their legislative authority,” and therefore “the people are the ultimate authors of the annotations.” Id. at 1233; see Jan Wolfe, U.S. High Court to Rule on Scope of Copyright for Legal Codes, June 24, 2019, Wolfe. The United States Supreme Court will hear argument in Georgia v. Public.Resource.org in December, and could rule that no state can copyright annotated statutes, opening the door for more AI content creators to provide annotated statutes online.
Many of the amicus briefs in support of Respondent Public.Resource.org explain the need for free access to statutes and other legal documents among law students, scholars, solo attorneys, and visually impaired counsel. See https://www.scotusblog.com/case-files/cases/georgia-v-public-resource-org-inc/. A great many of the amici are, themselves, providers of free AI research, and their briefs give the excellent lists of resources I mentioned.
For example, in their brief supporting a grant of certiorari, Next-Generation Legal Research Platforms and Databases describe themselves as: “[N]onprofit and for-profit creators and developers of next-generation legal research platforms that provide innovative tools and services for the legal community and the public. These tools serve the public interest by dramatically transforming the ways in which the public, courts, law firms, and lawyers access, understand, and utilize the law.” Next-Gen. Lgl. Res. Platforms, ACB. In addition to the for-profit AI services like Ravel and Casetext, the brief’s amici include these three providers:
(1) “Amicus Judicata ‘maps the legal genome’ and provides research and analytic tools to turn unstructured case law into structured and easily digestible data. Judicata’s color-mapping research tool fundamentally transforms how people interact with the law: it increases reading comprehension and speed, illuminates the connections among cases, and makes the law more accessible to both lawyers and nonlawyers.” Judicata has free and subscription-based services.
(2) “Amicus Free Law Project is a nonprofit organization seeking to create a more just legal system. To accomplish that goal, Free Law Project provides free, public, and permanent access to primary legal materials on the Internet for educational, charitable, and scientific purposes. Its work empowers citizens to understand the laws that govern them by creating an open ecosystem for legal materials and research. Free Law Project also supports academic research by developing, implementing, and providing public access to technologies useful for research.”
(3) “Amicus OpenGov Foundation produces cutting-edge civic software used by elected officials and citizens in governments across the United States. The Foundation seeks to ensure that laws are current, accessible, and adaptable. Everything the Foundation creates is free and open source, allowing the public to use, contribute to, and benefit from its work. Its software, coalition-building activities, and events are designed to change the culture of government and boost collaboration between governments and communities.”
I plan to share these three resources with my students, and to encourage them to watch Georgia v. Public.Resource.org and stay abreast of other developing AI platforms. I hope these sources are helpful to you as well. Happy research, everyone!
Saturday, October 19, 2019
This term, SCOTUS will hear a sovereign immunity case involving Blackbeard’s sunken pirate ship. In Allen v. Cooper, 18-877, the Court will address whether Congress validly abrogated state sovereign immunity in the 1990 Copyright Remedy Clarification Act (CRCA) by providing remedies for copyright holders when states infringe their federal copyrights.
Why does this matter to appellate advocacy, aside from the obvious fun of saying “Aaarrr!” when discussing an Eleventh Amendment case? The case could impact the scope of free access researchers and appellate practitioners have to online materials. In fact, while the case raises deep concerns for intellectual property creators, it also shows the increasing push by States to make images and documents available to the public at libraries and universities, and to preserve historic materials digitally.
In 1718, Blackbeard’s Queen Anne’s Revenge ran aground a mile off the coast of what is now called Beaufort, North Carolina. Legend says her captain and crew immediately transferred all treasure to smaller ships, and the Revenge remained underwater for over 200 years. According to the Fourth Circuit’s opinion in Allen v. Cooper, 895 F.3d 337, 343 (4th Cir. 2018), in 1996, a private research and salvage firm operating under a permit issued by North Carolina discovered the wreck of the Revenge. The researcher hired Petitioner, Frederick Allen, to document the shipwreck. Id. Allen obtained the rights to create video footage and photographs of the Revenge with another permit issued by North Carolina, and Allen registered his work over the next 13 years with the U.S. Copyright Office. Id. at 342, 344.
At some point, North Carolina posted pieces of Allen’s copyrighted works on State websites and in a State publication. The State and Allen settled copyright claims from these postings, and the State agreed not to use Allen’s commercial copyrighted material in the future. Id. at 344-45. Nonetheless, the State soon published more of Allen’s Revenge video and images online, and then the North Carolina Legislature passed “Blackbeard’s Law,” which converts many of Allen’s images to the public record. See id. at 342; N.C. Gen. Stat. § 121–25(b) (2015) (providing that photographs and video recordings of shipwrecks in the custody of North Carolina are public records); Amy Howe, Justices grant three new cases, SCOTUSblog (Jun. 3, 2019, 12:16 PM), https://www.scotusblog.com/2019/06/justices-grant-three-new-cases/.
Allen sued North Carolina for copyright infringement and for a declaration that Blackbeard’s Law is unconstitutional. The state moved to dismiss on the grounds of sovereign immunity, and Allen argued the CRCA abrogated North Carolina’s immunity. The district court ruled for Allen, but the Fourth Circuit reversed, holding Congress acted improperly in enacting the CRCA. Allen, 895 F.3d at 342-43, 350-53. The Supreme Court granted cert, and will hear the case on November 5. https://www.scotusblog.com/case-files/cases/allen-v-cooper/.
Over twenty amici have filed briefs. Amici in support of Allen make excellent arguments in favor of strengthening IP protection and maintaining the remedies provided in the CRCA. For example, Oracle, the Software & Information Industry Association, and a group of prominent law scholars have each filed briefs contending Congress properly protected IP rights and innovation in the CRCA. Oracle ACB, 2019 WL 3828598; SIIA ACB, 2019 WL 3814393, and Scholars ACB, 2019 WL 3828597. These briefs stress the need to protect inventors and innovators from state action and potential wholesale public adoption of their copyrighted property.
On the other hand, amici in favor of North Carolina argue copyright holders have remedies aside from the CRCA. The also claim abrogating immunity will limit the public’s access to documents at public university and government research libraries. The American Library Association and others stress that public archivists need protection for their large-scale, costly digitization projects to create open access and to save documents of historical significance. ALA ACB, 2019 WL 4858292. Similarly, a group of public universities note they are acting in the public interest to promote “education, research and community engagement” when digitizing documents and already carefully respect copyrights. Public Universities ACB, 2019 WL 4748384.
Whatever the outcome of these arguments, our appellate community should keep an eye on this case. Not only does it offer pirate fun, but it presents serious issues of property rights and public access to research materials.
Monday, October 7, 2019
I love a good meme. Make it a good grammar, writing, or editing meme and I am in law professor meme heaven.
Not long ago one of my Facebook friends started sharing the funniest grammar memes (or maybe she had been sharing them all along, but Mark Zuckerberg finally thought I should start seeing them). Regardless, I was hooked and followed the clicks through to the main Facebook page of Analytical Grammar. The company also has a website.
What I have loved about the Analytical Grammar memes is that they explain often misused words. For example, check out this meme (which I share with permission!):
I shared this meme on my Facebook page and several of my friends found in informative. I also like that if you click to Analytical Grammar's Facebook page, there is a short text description of the meme and the proper word usage.
I could share a lot more of the Analytical Grammar memes--they are delightful--but I want to get to the rest of the story. When I clicked over to the Analytical Grammar Facebook page, I was struck by the cover photo. It contains a few images and the following text: "This page is run by an Air Force reservist and small business owner, and the business is being SUED for sharing a viral meme. For the full story, documentation, and other info, go to this link: www.gofundme.com/analyticalgrammar." Naturally, I went to the GoFundMe page for more information.
Apparently, Analytical Grammar shared a viral picture of a visual pun. The pun went viral from its site too. That was in December 2017. Almost two full years later Analytical Grammar was sued in federal court by the man who said he created the meme.
According to the complaint (in a nutshell), the plaintiff took the photograph and copyrighted it. He claims that Analytical Grammar ran the photo without permission or a license. He also seems to claim that Analytical Grammar removed "copyright management information." He asks the court for actual damages, profits Analytical Grammar received from the infringement, attorneys fees, and punitive damages. Wow!
Analytical Grammar's answer and counterclaims is pretty awesome. In a delightful play on words (since the original photo was of several levels), it states;
Bradley’s lawsuit is wrong on so many levels. He levels claims against Analytical for sharing his joke. He does his level best to take Analytical down a level. But his claims are not on the level. Analytical raises these counterclaims to level the field.
It recounts the history of the photo, which wasn't even copyrighted until 2018, (even I was able to look that up on Copyright.gov) after the photo had risen to Internet fame, much to the plaintiff's delight.
Analytical Grammar raises several counterclaims too: (1) invalidity of copyright, (2) declaratory judgment of non-infringement of copyright, and (3) declaratory judgment of non-removal of copyright management information.
I was struck by this case. I often share memes on Facebook. I see others share memes on Facebook. I "like" shared memes on Facebook. Not once did I ever think about copyright when doing any of those things. I imagine that I am not alone in that regard. I will certainly be watching this case as it moves through the federal district court in North Carolina. Good luck Analytical Grammar!