Appellate Advocacy Blog

More than "Frenemies."

I recently had the honor of running into an old moot court student as opposing appellate counsel. It was in a case where there had been some heated language exchanged by trial counsel over an issue that was of serious concern to our clients. We shook hands, laughed at the irony, and then he said we would just have to be “frenemies.”

I’ve thought a fair bit about that exchange. Not because I don’t know what a frenemy is – I am not yet that old, and I do have access to the urban dictionary in case I need to verify - but because I don’t think that term fits the full relationship of opposing appellate counsel. We should be more than that.

Under the ABA model rules, there are only “shall nots” when it comes to the relationship between counsel. Thus, Rule 3.4, Fairness to Opposing Party & Counsel, provides that an attorney “shall not” unlawfully conceal or obstruct access to evidence, falsify evidence, make frivolous discovery requests or objections, and so on.

The Texas Standards for Appellate Conduct, under which I often operate, are much more aspirational. They provide that counsel will treat opposing counsel with respect, be punctual in communications with counsel, not impute bad motives or make personal attacks against counsel, and will not ascribe to opposing counsel a position they have not actually taken. These standards begin with the idea that “Lawyers bear a responsibility to conduct themselves with dignity towards and respect for each other, for the sake of maintaining the effectiveness and credibility of the system they serve.”

I wish all attorneys subscribed to those standards, but they are, perhaps, particularly well-suited to appellate counsel. We, more than any other lawyer, should be able to focus on the issues. We, more than any other lawyer, should be able to distinguish between attacking an argument and attacking opposing counsel. And we, more than other lawyer, should take that role seriously.

How does that pan out in practice? When we step into a case, we should be able to recognize when these ideals are not being met and we should do our best to fix that. Not only to keep the peace, but because that is how we can best serve our clients, who eventually will have those legal issues determined by an appellate court that has no interest in personal feelings.

So, when we step into a trial court to help with issues we know are going to be on appeal, we should step in with the idea that we aren’t just frenemies with opposing appellate counsel. We are working together to try to get the issues resolved as cleanly as possible, and if necessary, preserved and presented in a way that will help the court, and our clients, focus on the issues that have to be resolved. While we are opposed on the issues, we are allies in a larger sense.

That may sound pollyannish. But the courts of appeal in Texas that have all adopted these standards don’t think so. And I’m willing to bet that most appellate courts in the rest of the country would agree that when we act professionally, and even more, cordially, while still vigorously contesting each other’s arguments, we best serve our clients needs and the needs of the system in which we all work.

(photo credit: Brooklyn Museum - "Vous êtes un jeune homme bien né..." - Honoré Daumier).

 

GPT-4 Just Passed the Bar Exam. That Proves More About the Weakness of the Bar Exam Than the Strength of GPT-4.

It's official: AI has passed the Uniform Bar Exam.  GPT-4, the upgraded AI program released earlier this week by Microsoft-backed OpenAI, scored in the 90th percentile of actual test takers. 

"Guess you're out of a job," my wife said when I told her the news. 

Maybe she's right--unless, of course, the bar exam isn't actually an effective measurement of minimum competence to practice law. 

That's the open secret of the legal profession.  Bar exams do test a small handful of core legal skills, such as critical reading and basic legal analysis.  But they're downright abysmal at measuring the multitude of skills that separate competent and incompetent lawyers, such as legal research, writing ability, factual investigation, crisis response, communication, practice management, creative problem solving, organization, strategic planning, negotiation, and client management. 

I am hardly the first commentator to draw attention to this issue.  In Shaping the Bar: The Future of Attorney Licensing--which should be required reading for anyone interested in the attorney-licensing conundrum--Professor Joan W. Howarth says this:

Bar exams are both too difficult and too easy.  The exams are too easy for people who excel at multiple-choice questions.  Wizards at standardized tests can pass the bar with little difficulty, perhaps with a few weeks spent memorizing legal rules, without showing competence in a greater range of lawyering skills or any practice in assuming professional responsibility. 

And, bar exams are too difficult for candidates who do not excel at memorizing huge books of legal rules.  An attorney would be committing malpractice by attempting to answer most new legal questions from memory without checking the statute, rules, or case law.  Leon Greene, the dean of Northwestern Law School in 1939, observed that "there is not a single similarity between the bar examination process and what a lawyer is called upon to do in his practice, unless it be to give a curbstone opinion."  The focus on memorization of books of rules was silly in 1939, but today it is shockingly anachronistic, as attorneys asked for "curbstone opinions" would be carrying a complete law library on their phones.  Extensive rule memorization makes bar exams less valid, meaning that they test attributes not associated with competence to practice law.  Law graduates who would be great lawyers--too many of whom are people of color--are failing bar exams because they cannot drop everything else for two months to devote themselves to memorizing thick books of rules.

Against this backdrop, is it really a surprise that a literal learning machine beat 90% of the human test takers?

Predictably, the National Conference of Bar Examiners quickly issued a press release once the news broke about GPT-4 acing its exam.  The NCBE said that human attorneys have unique skills, gained through education and experience, that "AI cannot currently match."  And, on that score, I wholeheartedly agree.  But that raises the question many of us have been asking for years: If "skills," "education," and "experience" (not mass memorization, regurgitation, and fact-pattern recognition) are what set the best lawyers apart, why aren't we using those qualities to measure minimum competence?

___________________________________________________________

Philip Seaver-Hall is a litigation attorney at Knox McLaughlin Gornall & Sennett, P.C.  The views expressed in this post are the author's alone and are not necessarily shared by the Knox Law Firm. 

ChatGPT and Legal Writing

ChatGPT is an artificial intelligence chatbot that can, among other things, compose music, play games, and generate student essays and examination answers. Indeed, ChatGPT has already been studied to assess its efficacy on law school examinations. One study, for example, revealed that ChatGPT passed four law school exams at the University of Minnesota -- earning an average grade of C+ -- and an exam at the University of Pennsylvania’s Wharton School of Business.[1]

The leader of the study examining ChatGPT in the law school performance context stated that “[a]lone, ChatGPT would be a pretty mediocre law student," and emphasized that “the bigger potential for the profession here is that a lawyer could use ChatGPT to produce a rough first draft and just make their practice that much more effective.”[2]

Certainly, in law school and in the legal profession, ChatGPT can have benefits. For example, ChatGPT can enhance efficiency by, for example, producing rough drafts of basic legal documents such as complaints, memorandums, interrogatories, and document requests.  Additionally, ChatGPT can assist individuals who cannot afford legal services in producing competent legal documents.

What ChatGPT cannot do, however, is teach law students how to think, how to write, and how to persuade. That, in a nutshell, is the point – and the problem. Below are two concerns regarding ChatGPT’s effects on law school and the legal profession.

1.    Law students need to learn how to think critically.

Learning how to think critically is among the most important skills needed to be a competent lawyer. And in recent years, many students begin their first year of law school lacking this skill. Thus, during the first year of law school, particularly in doctrinal and legal writing courses, students learn, among other things, how to read cases, understand complex legal concepts, synthesize the law, and apply the law to different fact patterns.

ChatGPT is problematic because, in some contexts, it does the thinking for the students. In so doing, it enables students (to some extent) to avoid the admittedly arduous process of understanding and interpreting complex legal doctrines, and presenting such doctrines (e.g., in a memorandum or a brief) in an understandable, logical, and persuasive manner. Indeed, David Kemp, an adjunct professor at Rutgers Law School, stated that “[i]f you’re asking it to organize several concepts, or are struggling to explain something in a way that’s really understandable, it can help.”[3]

That, again, is the point – and the problem.

Students should not be relying on artificial intelligence to organize complex legal concepts or explain them in a way that readers can understand. They should, through hard work and perseverance, develop critical thinking skills so that they can do it themselves. Otherwise, we are training students to rely not on their minds or their legal training, but on a technology that, at best, produces mediocre results.

Perhaps some would describe this as an “old school” approach to legal education. And they would be right. The quality of law students at many law schools has steadily declined in recent years, and ChatGPT threatens to worsen this problem by doing for law students what they should, after three years of legal training, be able to do for themselves.

2.    Law students need to learn how to write competently and persuasively.

It is no secret that judges and lawyers often criticize law graduates for their poor writing skills.[4] The reasons for this include, but are not limited to, insufficient preparation during students' undergraduate coursework, and insufficient dedication to required legal writing courses in law school.

This fact, however, only underscores the need to train students to think – and write – like lawyers. Students need to learn, for example, how to research the law, how to craft a compelling narrative, how to synthesize legal authority, how to reconcile unfavorable facts and law, and how to draft an organized and well-structured legal argument.

To do so, students need to embrace the writing process, which involves writing, rewriting, and editing. It requires critical thinking. Hard work. Perseverance. And the ability to write effectively and persuasively. ChatGPT is not going to teach students how to do this because, at least to some extent, it will do it for them. That makes the problem worse, not better.

To be sure, ChatGPT may produce the equivalent of a mediocre first draft, which students will then edit and re-edit to improve its quality. But good legal writing is not simply about editing. To be an excellent editor, you must first be an excellent writer and re-writer. That means embracing the writing process and acquiring the skills needed to draft, for example, a persuasive motion or appellate brief. As one professor explains.

Legal writing faculty interviewed by the ABA Journal agree that ChatGPT writing can model good sentence structure and paragraph structure. However, some fear that it could detract from students learning good writing skills. ‘If students do not know how to produce their own well-written analysis, they will not pass the bar exam,’ says April Dawson, a professor and associate dean of technology and innovation at the North Carolina Central University School of Law.’[5]

Professor Dawson may be correct that ChatGPT will reduce bar passage rates. What it will almost certainly do is ensure that students never become excellent persuasive writers. And it will also cause some students to rely on ChatGPT to do the hard work that they should be doing, and that is necessary, to produce quality legal work.  This is the risk that reliance on ChatGPT – particularly for complex legal motions and briefs – engenders.

Ultimately, ChatGPT can certainly have benefits. Among those is increasing efficiency and productivity. But law students still need to have the analytical thinking and writing skills to be able to interpret complex legal texts, draft persuasive legal arguments, and present compelling arguments before a court.  As such, ChatGPT’s benefits must be balanced against the need to train students to think, write, and practice like lawyers.

Perhaps this is an “old school” approach, but that approach has produced extraordinary attorneys who have transformed the law and the legal profession through their advocacy.

Simply put, you cannot replace an intelligent, thinking human being.

 

[1] See Samantha Murphy Kelly, “Chat GPT Passes Exams from Law and Business Schools” (January 26, 2023), available at: ChatGPT passes exams from law and business schools | CNN Business

[2] Reuters, “Chat GPT Passes Law School Exams Despite ‘Mediocre’ Performance” (January 25, 2023) available at: ChatGPT passes law school exams despite 'mediocre' performance | Reuters.

[3] Kelly, supra note 1.

[4] See Ann Nowak, The Struggle with Basic Writing Skills (March 1, 2021), available at: The Struggle with Basic Writing Skills | Published in Legal Writing (legalwritingjournal.org)

[5] Kelly, supra note 1.

Appellate Advocacy Blog Weekly Roundup Friday, March 17, 2023

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• West Virginia has asked the Supreme Court to vacate in an injunction in a transgender rights case, West Virginia v. B.P.J. The injunction bans a law that prohibits trans-identified boys from competing on female-only sports teams at the secondary and university level. If the Court reaches the merits, it may be the first case where the Court will determine whether the Constitution protects against anti-trans discrimination. See report from Vox.
  
  
• The United States Courts posted this News Release announcing that the Judiciary’s 2022 Annual Report and Statics is now available.
  
  
• The Supreme Court’s memorial for Justice Ruth Bader Ginsberg was held today, Friday, March 17. See a report from the Associated Press.

Appellate Court Opinions and News

• The Fifth Circuit has refused to recognize the state-created danger doctrine, which is an exception to the general rule that the government has no duty to protect against privately caused harm. Although recognizing that a majority of federal circuits recognize the doctrine and noting that the “facts giving rise to [the] lawsuit are unquestionable horrific,” the Fifth Circuit found that the state-created danger doctrine was not clearly established in the Fifth circuit and cited the recent Dobbs opinion as a basis for not expanding substantive due process rights without careful consideration, including considering whether the right is “deeply rooted in the Nation’s history and tradition.” Thus, the court ruled that a school enjoyed qualified immunity from liability regarding the repeated sexual assault of a severely disabled public-school student on school grounds. In the case, school officials not only knew in advance of the first assault that the victim required supervision at all times and that her attacker had violent tendencies but also knew about the prior attack on the victim by the same attacker before again allowing victim and her attacker to be unsupervised. A dissent posing as a concurrence urged the Fifth Circuit to hear the case en banc and adopt the doctrine, stating “it is well past time for this circuit to be dragged screaming into the 21st century.” See the ruling and reports in The Volokh Conspiracy, Law.com, Courthouse News Service, and Bloomberg (subscription required).

• The Eleventh Circuit upheld a Florida law that bans people under 21 from owning a gun. In upholding the ban, the court applied the 2022 Bruen framework that requires the government to demonstrate that the regulation “is consistent with this Nation’s historical tradition of firearm regulation” and cited more than a dozen state law barring people under 21 from buying guns. See the ruling and reports from Reuters and CBS News.

• The Ninth Circuit refused to rehear the November 2022 case that ruled that the First Amendment protected an Oregon beauty pageant’s “natural born female” eligibility requirement and allowed the pageant to ban a transgender contestant. See the November 2022 ruling and the order denying rehearing.  

State Court Opinions and News

• The North Dakota Supreme Court upheld a lower court decisions that blocked an abortion ban and held that the state constitution protects the right to “enjoy and defend life and a right to pursue and obtain safety,” including the right to an abortion to preserve life or health. See the ruling and report from The New York Times.

The substantive importance of punctuation in legal arguments; or, how I learned to stop worrying and love the semicolon

Most (all?) ancient languages lacked punctuation and capitalization. Egyptian heiroglyphs, Homeric Greek, Akkadian, etc. were all written in what amounts to all caps with no spaces and no way to tell (other than training and context) where one word or phrase ended and another began. In the case of heiroglyphs (and older Hebrew texts), they even lacked vowels. For many of these writers, opacity was a feature, not a bug, as it protected knowledge thought too sacred for the uninitiated.

While it's certainly possible to write now--even with our vowels, capital letters, and punctuation--to prevent easy understanding, it's not a good idea if you're a lawyer. The idea is to communicate your ideas clearly, keeping the possibility for misunderstanding to a minimum.  

Part of writing clearly is correctly--even elegantly--using punctuation for pauses. We have five commonly-used marks for this (in general ascending order of pause length): comma, semicolon, dash, colon, and period. Many times, it's just a question of style; how long do you want the reader to absorb what you've said?; do you want to connect the ideas more closely and quickly (comma, semicolon, dash) or have them digest things more slowly (colon, period)? But it can also affect the substance of legal arguments.

Use (and non-use) of the Oxford comma in a contract provides one famous example. In many ways, Marbury v. Madison was a decision about reading a semicolon in the Judiciary Act of 1789 as a period. Because the law is words, the laws governing word use and punctuation often rein supreme (absent some exception like the absurdity canon). I once had a case in which a criminal defendant was challenging his counsel's lack of objection to a jury instruction because it resembled an instruction in a prior case that had been held erroneous. I noticed that it differed from the bad instruction because its clauses were separated by semicolons rather than a colon. In my brief, I discussed the differences between the two marks and why it mattered. The court agreed with me that because the instruction had semicolons, it correctly stated the law, so counsel wasn't required to object. State v. Lopez, 438 P.3d 950 (Utah Ct. App. 2019). 

Punctuation may seem like a small thing, but it can determine the outcome of many legal issues. Use it wisely, and if you don't know the technical (as opposed to merely stylistic) differences, start learning them now. You'll be better off, and the courts will appreciate it.  

Guest Post: Can ChatGPT Prepare Me for Oral Argument?

This is a guest post by Jayne Woods, Associate Teaching Professor of Law at University of Missouri School of Law. All faults in fixing bullets points are Professor Dysart's.

As Spring approaches, many legal writing faculty are gearing up to teach oral advocacy to the 1L students.  While there is much discussion and debate about ChatGPT’s role in legal writing, I began to wonder if ChatGPT has a part to play in oral advocacy as well.

We preach to our students that preparation is the key to success in moot court and oral advocacy generally, and we give them strategies like outlining, summarizing relevant case law, and practicing responses to anticipated questions.  So I decided to let ChatGPT flex its muscles as a preparation assistant.

First, I asked it to create an outline based on the general legal framework of my students’ appellate brief problem, which involves both a facial and an as-applied First Amendment challenge to a municipality’s advertising guideline for its public transit system that bars religious content.  The outline looked very much like the examples we give our students:

I. Introduction

• • Introduce the case and state the issue on appeal
  • Introduce the appellant and their argument
  • Provide a roadmap of the oral argument

II. Standard of Review

• • Explain the standard of review for the district court's decision to deny the preliminary injunction
  • Argue that the district court applied the wrong standard of review and that the appellate court should apply de novo review

III. Facial Challenge

• • Argue that the city's advertising guideline prohibiting religious content is unconstitutional on its face
  • Explain that the guideline is content-based and subject to strict scrutiny
  • Argue that the guideline fails strict scrutiny because it is not narrowly tailored to serve a compelling government interest

IV. As-Applied Challenge

• • Argue that the city's application of the guideline to the church's religious advertisement is unconstitutional
  • Explain that the application of the guideline amounts to viewpoint discrimination
  • Argue that the city has not provided a compelling government interest for the discrimination
  • Provide examples of similar advertisements that were accepted by the city, but were not religious

V. Precedent

• • Discuss relevant precedent that supports the church's argument
  • Distinguish precedent that the city may rely on to support its guideline

VI. Conclusion

• • Summarize the argument and emphasize the importance of protecting the First Amendment rights of the church

This seems pretty good, though it does need some tweaking, as our problem does not involve strict scrutiny.  But this strikes me as a great starting point for our students who will be creating their first-ever outline for an appellate oral argument.  In a similar vein, it could help a new attorney making their first argument before an appellate court.

ChatGPT is also adept at creating concise, brief summaries of case law, and I asked it to create summaries of five of the most apposite cases involved, including the court’s reasoning for each.  Here are two examples:

Rosenberger v. Rector and Visitors of the University of Virginia (1995): The court held that the University of Virginia's refusal to fund a Christian student publication was unconstitutional viewpoint discrimination. The court reasoned that the university's policy of denying funding to religious organizations while funding secular organizations violated the First Amendment's Free Speech Clause by discriminating against religious viewpoints.

Archdiocese of Washington v. Washington Metropolitan Area Transit Authority (2017): The court held that the Washington Metropolitan Area Transit Authority's policy of rejecting an advertisement from the Archdiocese of Washington because of its religious content was unconstitutional. The court reasoned that the policy was viewpoint discrimination, as the transit authority allowed advertisements from secular organizations while excluding advertisements with religious messages.

These summaries are wonderfully concise snippets that could help an advocate quickly and easily recall a case for discussion purposes.  That said, the summary for the Archdiocese case is inaccurate; in fact, the Archdiocese lost that case because it failed to establish viewpoint discrimination. I repeatedly asked ChatGPT if it was sure about the accuracy of that summary and, though, it repeatedly admitted error, it continued insisting that the Archdiocese prevailed.  The inaccuracy was likely a result of how ChatGPT works.  It is based, in part, on the statistical structure of language, meaning its responses involve the most likely words in the most likely sequence in response to the prompt.  See https://www.assemblyai.com/blog/how-chatgpt-actually-works/.  When considering that the Archdiocese case is an outlier, ChatGPT’s response makes more sense; in most cases like Archdiocese, the party in the Archdiocese’s position prevails because it is able to establish viewpoint discrimination.  Even though I knew ChatGPT’s answer was incorrect, it was so certain that it caused me to both question my own recollection of the case and look it up again to verify.  But verifying the accuracy of the cases relied on is also good practice for an advocate.

I next asked it to generate some questions that a court might ask during an appellate argument.  This was where it got really cool.  It generated twenty-eight distinct questions and likely would have generated more had the system not become overloaded at the time.  Here are some examples:

1. How does the Supreme Court's decision in cases such as Board of Regents v. Southworth and Rosenberger v. Rector and Visitors of the University of Virginia affect the outcome of this case?
2. Are there any specific regulations or guidelines that the bus company must follow when deciding whether to accept or reject an ad?
3. Has the bus company previously accepted similar ads from other religious or non-religious groups, and if so, how does it justify the differential treatment in this case?
4. Did the bus company have a reasonable basis for concluding that the religious ad would be likely to cause disruption or harm, and if so, what evidence supports this conclusion?
5. If the plaintiff prevails, how might this decision impact other cases involving government-owned or government-operated advertising platforms, such as airports or public transit systems?

After having it pose questions, I tried to simulate an actual oral argument.  Specifically, I asked if we could engage in questions and answers where ChatGPT posed as a court and I posed as the attorney answering questions during an oral argument.  It enthusiastically agreed and then proceeded to simply create a transcript of an oral argument involving both questions from a court and answers from an attorney.  It turns out that, while ChatGPT is very adept at answering questions, it’s not terribly inquisitive.  I did manage to get a very brief back and forth after instructing it to ask me a very specific question, which concluded with ChatGPT thanking me for my argument:

Prompt:  ask me a question about my position that a city's advertising guideline barring religious content amounts to viewpoint discrimination

ChatGPT:  Certainly, counsel. How does your argument that the city's advertising guideline barring religious content amounts to viewpoint discrimination relate to the Supreme Court's holding in Rosenberger v. Rector and Visitors of the University of Virginia?

My response:  In Rosenberger, the Supreme Court indicated that, if the government opens a topic for speech, it may not then prohibit speech on that topic solely because of the viewpoint of the speaker. Here, the city allowed an advertisement promoting a children's Easter egg hunt but precluded my client's ad promoting an Easter worship service. Obviously, the city opened up the topic of Easter; thus, its refusal to accept my client's ad was solely because of my client's nature as a house of worship.

ChatGPT:  Thank you for your response, counsel. Can you further explain how your argument aligns with the Supreme Court's holding in Good News Club v. Milford Central School and Lamb's Chapel v. Center Moriches Union Free School District?

My response:  Yes, your honor. In both Good News Club and Lamb's Chapel, this Court encountered similar scenarios, where the government opened up public buildings for certain purposes but then barred religious entities from using the buildings because those entities were seeking to promote Christian viewpoints on the same topics the buildings were opened up to secular groups.

ChatGPT:  Thank you for your response, counsel. Based on your argument and the relevant Supreme Court precedents, it appears that you are contending that the city's advertising guideline barring religious content amounts to viewpoint discrimination, which is unconstitutional under the Free Speech Clause of the First Amendment. Thank you for your argument, counsel.

              This was great, albeit brief, practice.  I tried getting a longer discussion using some of the questions it had previously generated, but each time, ChatGPT asked a single question, I responded, and it simply agreed with me.  While this was great for boosting my confidence, it was not great at preparing me for hard questions.  So I went back and reviewed the transcript it created of a mock oral argument.  This was great!  It provided not only probing questions but also insightful answers:

Court: Counsel for the appellant, can you explain why you believe the city's guideline prohibiting ads with religious content violates the First Amendment?

Appellant: Yes, your honor. The city's guideline banning religious content in advertisements is not content-neutral because it discriminates against religious speech. Under the Supreme Court's holdings in Rosenberger, Good News, and Lamb's Chapel, any policy that discriminates against religious viewpoints is unconstitutional under the Free Speech Clause of the First Amendment.

Court: Counsel, the city argues that the advertising guideline is neutral and generally applicable, and does not target religious speech or practices. Can you respond to that argument?

Appellant: Your honor, the city's advertising guideline is not neutral and generally applicable. The guideline specifically prohibits religious content in advertisements, while allowing ads with secular content. This is precisely the kind of content-based discrimination that the Supreme Court has held violates the First Amendment.

Court: Counsel, what evidence do you have to show that the city's guideline is not neutral and generally applicable?

Appellant: Your honor, the city's guideline itself is evidence that it is not neutral and generally applicable. The guideline singles out religious content for exclusion, while allowing ads with other types of content. Additionally, the city's decision to reject our client's advertisement for a religious service shows that the guideline is not applied neutrally. If the guideline were truly neutral and generally applicable, our client's advertisement would not have been rejected simply because it contained religious content.

Court: Counsel, the city argues that the guideline is necessary to avoid entanglement between government and religion. How do you respond to that argument?

Appellant: Your honor, the city's argument that the guideline is necessary to avoid entanglement between government and religion is not persuasive. The Supreme Court has repeatedly held that the government may not discriminate against religious speech or practices simply to avoid entanglement with religion. In fact, such discrimination itself constitutes impermissible government entanglement with religion. Therefore, the city's guideline is unconstitutional under the Free Speech Clause of the First Amendment.

I envision a student or advocate using this as a self-evaluation.  The student or advocate could hide the potential answers, provide their own responses, and then check their answers against the samples.  My overall takeaway:  as with most things related to ChatGPT, it provides a great starting point but still needs human eyes to fact-check and finesse.  But I think ChatGPT has great potential to assist advocates in preparing for oral argument.

Licensing Paid Blogs?

When your appellate practice focuses heavily on constitutional issues, as mine does, it is hard not to look at news stories and imagine the upcoming litigation. I had that reaction when I saw what is only a bill in Florida, but absurdly seeks to license blogs that generate income and mention government officials.

S.B. 1316, introduced by State Sen. Jason Brodeur, seeks to treat bloggers the same way as lobbyists, imposing registration and reporting requirements, although it exempts blogs that appear on a newspaper’s or similar publication’s website. Registration and reporting is required “[i]f a blogger posts to a blog about an elected state officer and receives, or will receive, compensation for that post.” The report must disclose the source and amount of compensation, rounded to the nearest $10.

Presumably, the legislation is being justified on the idea that disclosure can be required “so that the people will be able to evaluate the arguments to which they are being subjected.”[1] Yet, it immediately recalls the early prior restraints that followed registrations of printing presses in the 1600s and licensing of newspapers.

The legislation raises a host of constitutional issues. First, it says nothing about its potential extraterritorial import. Does the sponsor anticipate that a blogger in another state would have to comply with its registration and reporting requirement even though separate and apart from the First Amendment issues such a requirement would violate the Dormant Commerce Clause and due process for its attempt to reach beyond the State of Florida? And, how could it be enforced against an out-of-state blogger? And, if it does not apply, what justification exists for treating an out-of-state blogger differently from one who resides in-state, even though both blogs would be equally available through the Internet.

Still, by exempting newspapers and other publications, the legislation fails to treat all paid publications evenhandedly. The Tenth Circuit found the distinction likely fatal when faced with the same issue at the preliminary-injunction stage. There, Colorado attempted to claim that “a valid distinction exists between corporations that are part of the media industry and other corporations that are not involved in the regular business of imparting news to the public ” in support of a disclosure law that treated mention of a political candidate to constitute electioneering.[2] In fact, the Supreme Court in its controversial Citizens United decision state that “[t]here is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.”[3]

Another distinction in the legislation likely fails to pass constitutional muster: the distinction between paid bloggers and gratis ones. More than three decades ago, the Supreme Court shut down differential treatment of those engaged in expression on public matters based on compensation.[4]

It is difficult to think of a justification for registration and reporting at the mere paid blog mention of a state official. Doing so only facilitates further regulation, scrutiny, or retaliation. If the disclosure has a public purpose, why is that purpose not equally compelling on issues of public concern or non-office holding political candidates? Instead, by tying it to officeholders, the legislation suggests an improper purpose. After all, the First Amendment represents a  “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”[5] Thin-skinned politicians need not apply.

S.B. 1316 may never become law. Even if enacted, it seems unlikely to ever take effect.

 

[1] First Nat. Bank of Bos. v. Bellotti, 435 U.S. 765, 792 n.32 (1978).

[2] Citizens United v. Gessler, 773 F.3d 200, 212 (10th Cir. 2014).

[3] Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 352 (2010).

[4] See Meyer v. Grant, 486 U.S. 414, 424 (1988).

[5] New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

The Rhetoric of ChatGPT: What ChatGPT Had to Say About Its Connection to Rhetoric and What We Can Learn from That Response

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.

The Rhetoric of ChatGPT:  What ChatGPT Had to Say About Its Connection to Rhetoric and What We Can Learn from That Response

I’ve been thinking about what ChatGPT might mean for the practice of appellate lawyers and their ability to be persuasive.  So, I typed this as a prompt for ChatGPT:

 I am writing a blog post for an audience of appellate lawyers. What should I tell them about the relationship between rhetoric and ChatGPT?

Here’s what ChatGPT replied:

Rhetoric is the art of using language effectively to persuade or influence an audience. In many ways, ChatGPT can be seen as an extension of this art, as it uses natural language processing to generate persuasive and compelling responses to a wide range of prompts.

One of the key advantages of using ChatGPT for rhetorical purposes is its ability to quickly generate high-quality content in a wide range of styles and formats. This can be particularly useful for appellate lawyers, who need to produce persuasive legal arguments and compelling briefs that are tailored to the specific needs of their clients.

At the same time, it's important to remember that ChatGPT is a machine learning model, and as such, it has limitations. While it can generate persuasive responses based on patterns it has learned from large volumes of text data, it cannot understand the nuances of human emotion, context, or intent in the same way that a human being can.

This means that appellate lawyers who use ChatGPT for rhetorical purposes must be careful to ensure that the responses generated by the model are appropriate and effective for their intended audience. They should also be aware that the use of ChatGPT in legal writing is still a relatively new and evolving area, and that best practices are still being developed.

Overall, ChatGPT can be a valuable tool for appellate lawyers looking to enhance their rhetorical skills and produce high-quality legal content. By using the model in conjunction with their own expertise and insights, lawyers can create persuasive and compelling arguments that effectively convey their clients' positions.

Analyzing ChatGPT’s Response

Not a bad response, generally speaking. But what has ChatGPT revealed about itself?  Here’s a brief analysis of some things we can learn about ChatGPT from this response.

            ChatGPT Might Assume Too Much About the Reader

ChatGPT starts with a correct definition of rhetoric and then asserts that ChatGPT is an extension of rhetoric because it uses natural language processing (NLP). But ChatGPT assumes the reader knows what NLP is.  (And later it assumes that the reader knows what a “language processing model” is.)   If you don’t know (I didn’t) what NLP is, here’s a quick definition sourced from IBM:

NLP combines computational linguistics—rule-based modeling of human language—with statistical, machine learning, and deep learning models. Together, these technologies enable computers to process human language in the form of text or voice data and to ‘understand’ its full meaning, complete with the speaker or writer’s intent and sentiment.

So, one thing we learn about ChatGPT from this passage is that it can wrongly assume a reader’s knowledge, something lawyers know better than to do. While we might think that better engineering of ChatGPT’s prompt would solve the problem, recall that I told ChatGPT the audience for whom I was writing. That specific detail in the prompt did not seem to make a difference in ChatGPT understanding that many members of the intended audience would have limited knowledge of the computer science terms associated with ChatGPT. 

            ChatGPT Thinks of Itself as “Art”

I’m intrigued that ChatGPT chose the term “art” when describing itself as an “extension” of rhetoric.  This characterization seems counterintuitive because ChatGPT is the product of computer, data, and language science.  Yet, ChatGPT suggests that because NLP is a human-like effort to understand the meaning of language (as the definition above reflects), ChatGPT sees itself as an “artistic” endeavor, at least regarding persuasion.  And, at least in some cases, ChatGPT has proven that to be true--there’s something that feels like artistry in ChatGPT’s responses to prompts.  (See, e.g., this poem by ChatGPT and the debate around whether ChatGPT’s poetry is “art.”)

If ChatGPT sees itself as art rather than science, then we should take it at its word and think of it as we do art and artists.  That is, as do artists, ChatGPT brings a particular perspective to its responses.  As such, ChatGPT’s response is a form of art—and only one of many responses available.  Just like painters and sculptors can interpret their objects of study differently, ChatGPT’s interpretation of data in a particular response is one of many.  Thinking of this another way, we might view ChatGPT’s responses to prompts as opinions, subject to issues of perspective, interpretation, accuracy, bias, and incompleteness.

            ChatGPT Speaks Like It Wants to Sell You Something, but Should You Buy It?

Although I asked ChatGPT to describe a relationship between two things, ChatGPT’s response feels more like a sales pitch. It makes grand, authoritative-sounding claims about ChatGPT’s value to the user.  It is confident that it can help lawyers persuade and compel by providing “high-quality content in a wide range of styles and formats.”  ChatGPT reminds us that it has “key advantages,” that it can enhance the lawyer’s persuasive skill, and that it can generate high-quality content that can be tailored to client’s needs.

Why might ChatGPT sound so confident?  Maybe ChatGPT’s confidence comes from the way it generates responses.  ChatGPT generates responses by examining a vast amount of data, looking for the patterns and relationships between words in the sample, and then predicting what response is appropriate for the context.  Perhaps because I told it I was writing a blog post, the texts that ChatGPT accessed for context were blogs, and because many blogs are written in a tone designed to sell something, this caused ChatGPT to adopt the same tone by predicting that I was expecting that tone in the response.

Regardless of the reason, this extra-confident tone of the response should give us a reason to scrutinize ChatGPT’s claims more carefully.  If we read closely, we see that the response doesn’t really explains what “high-quality content” means.  On one hand, commentators point out that ChatGPT cannot tell the difference between true and false information and thus can deliver inaccurate responses.  This aspect of ChatGPT, then, is not “high-quality.”  Moreover, ChatGPT’s ability to sound very confident in its responses can lure readers into believing the responses’ truth.  For lawyers, this inaccurate information expressed in a confident tone is a malpractice minefield.  For example, one would not want to rely at face value on what ChatGPT says about some point of law.  (It’s probably useful to remind those in your office who could use ChatGPT of this important point.)

On the other hand, ChatGPT arguably can offer something of high(er) quality in that it can produce a “wide variety of styles and formats.”  You can prompt ChatGPT to write in a particular style—even your own!  You can request it write content in the style and organization of a brief or a motion, and it will comply.  You can ask it to assist in correcting your grammar.  It’s pretty good at offering examples of different genres, styles, and tones of writing.  This is because it is good at providing an approximation of whatever you’ve asked it to create based upon the patterns it recognizes in the dataset.

But here’s the catch, I think, with using ChatGPT to generate “style and format” content: the user must already understand the style and structure he or she seeks in order to evaluate the quality of ChatGPT’s response.  In other words, if you don’t know already what a case caption for, say, the United States Court of Appeals for the Ninth Circuit looks like, how can you be sure ChatGPT will give you the right format for that caption?  Likewise, if you aren’t sure what a good introduction to an appellate brief looks like, how can you know if ChatGPT has given you a good one in its response?   ChatGPT would be good at giving you examples, but it can’t really tell you which one is “best” in your circumstances.

            ChatGPT Knows Its Rhetorical Limits

Even though ChatGPT is confident in its capabilities, it admits that it has limits.  Specifically, ChatGPT responds that it cannot understand emotion, context, or intent like a human does when crafting responses to persuade. This is a pretty significant admission.  To be limited in these ways is relevant to ChatGPT’s persuasive abilities; understanding emotion, content, and intent are elements of human communication that are central to rhetorical effectiveness.  So, even though ChatGPT sees itself as an “extension” of rhetoric, it is a fairly limited extension.

 ChatGPT reminds us that one of its limitations is that it generates persuasion from finding patterns in large amounts of existing data.  So, that raises the problem of “garbage in,” “garbage out.”  In other words, the quality of ChatGPT’s responses is only as good as the data it can access.  That is, if the dataset has both helpful and unhelpful patterns that inform ChatGPT’s responses, how does one know if what ChatGPT generated is something worth relying on?  The only way to know is to already have the knowledge essential to evaluating the response.

            In the End, ChatGPT is Deferential about Its Writing

ChatGPT says it is the appellate lawyer’s job to ensure what ChatGPT writes is effective for the intended audience.  It talks about itself as a “model” that can help lawyers be persuasive and reminds lawyers that the model should be used in conjunction with lawyers’ expertise and insights.  In other words, ChatGPT does not take the position that it replaces humans in the writing process—particularly where audience analysis and professional expertise is involved.  Here, ChatGPT makes a significant rhetorical move—it reminds you that the technology is only as good as its user and, even after all of its confidence above, disclaims responsibility for the usefulness of its output. Fascinating.

Some Takeaways

ChatGPT notes that it is new enough that “best practices” for using ChatGPT in legal writing are still being developed. I take this as a challenge!  Based upon ChatGPT’s rhetoric (i.e., the way it uses language to talk about itself), I’ll propose some best practices for you:

• Do not be misled by ChatGPT’s confidence. ChatGPT sounds confident and authoritative in its responses, but users should be skeptical about the legitimacy of that confidence.
• Rely on your own expertise, not ChatGPT’s. Appellate lawyers (and staff working for them) need to have an existing knowledge base to evaluate ChatGPT’s responses.  In particular, evaluating the appropriateness of the response for an audience is essential.  As with all aspects of outsourcing judgment in legal practice, outsourcing judgment to ChatGPT is dangerous.  At the very least, for appellate lawyers to use ChatGPT effectively, they will need to become familiar with prompt engineering techniques that make ChatGPT more expert in the field and thus arguably improve ChatGPT’s responses.
• Treat ChatGPT as opinionated, not authoritative. Although ChatGPT is the product of science, ChatGPT should be seen as an artistic process, generating content that is more like opinion than unassailable fact.  Treat ChatGPT as conversation partner, muse, or collaborator than can help you “play” with ideas and text.  (Check out Ian Bogost’s article insightfully concluding that “ChatGPT  . . . doesn’t understand or even compose text. It offers a way to probe text, to play with text, to mold and shape an infinity of prose across a huge variety of domains . . . into structures in which further questions can be asked and, on occasion, answered.)
• Remember that ChatGPT relies on pattern recognition, a limited mode of persuasion. ChatGPT does not have all the rhetorical capabilities of humans but can recognize patterns in data that might have persuasive impact.  Even if that pattern recognition is persuasive, users must remember to look at persuasion from all aspects of the human experience, not just in the ways that ChatGPT looks at it.
• Remember that ChatGPT does not guarantee competent writing, you do. At bottom, ChatGPT does not claim it is superior to you in writing ability but rather it remains deferential to your experience and expertise. It disclaims its ability to effectively write for your “local” audience.  No one—not even a computer—knows your clients, your arguments, and your audience better than you do.  Rely on your own judgment about competent writing.

What are your thoughts?

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Co-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. Among other things she’s up to right now, she’s currently working on a writing handbook written specifically for trial lawyers. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

ChatGPT & Grammar

This past weekend I was at a conference in Las Vegas. At the conference, my colleague Diana Simon presented on her recent book--The (Not Too Serious) Grammar, Punctuation, and Style Guide to Legal Writing. During the social time after the presentation, someone asked how ChatGPT handles grammar.  While many professors are stressing over student use of ChatGPT, some professors are considering a key question: Can ChatGPT help me grade papers (at least grade grammar)?

I was mostly just eavesdropping while the professors were discussing grammar, but at least one person noted that ChatGPT does a pretty decent job, and it can give you explanations. Turns out that is right. Stephen Horowitz, a professor of Legal English at Georgetown, has a detailed blog post on how he used ChatGPT for an assignment with his LLM students. For the assignment, he had his students run a short essay through ChatGPT with the instruction to "Please fix any language issues in this essay."

While I commend the full post to you, I will share just his conclusion: 

What I really liked about the assignment is that it succeeded in helping my students build grammatical awareness. Also, I think my students greatly appreciated a way to get detailed language feedback. In my class, while I provide language feedback to the extent it connects to the communicative purposes related to legal analysis and writing, it’s not a grammar class and I don’t have the bandwidth to provide detailed language feedback on every aspect of the students’ writing. (A statement I’m assuming many in the legal English/legal writing field likely relate to.) Additionally, I believe there’s a certain amount of value in receiving the feedback in a manner removed from the power dynamic associated with the student-teacher relationship, i.e., not from an authority figure who has the power to decide your academic fate, but from a neutral, non-judgmental chatbot. And I think it also opens up the potential for more focused conversations and questions between student and teacher about language and grammar, as it helps narrow down areas of student concern from the perspective of each student.

Advice for Law Students on Oral Argument

After judging a regional round of the National Appellate Advocacy Competition this weekend in Los Angeles, it was apparent immediately that the law students participating in this competition demonstrated intelligence, talent, and persuasiveness. Indeed, the participants were quite impressive and showed that the future of the legal profession is bright. Having said that, below are a few tips for law students to help improve their already-impressive appellate advocacy skills.

1.    Slow down. Once again, slow down. Your goal is to advocate for your client and maximize the persuasive value of your argument. To do so, you need to be authentic and conversational. In so doing, you should change your pace, tone, and inflection to emphasize (and de-emphasize) specific points. When you speak too quickly, you lose credibility and negatively impact the persuasiveness of your argument. And you lose points. So be sure to focus on being yourself, which means being authentic, conversational, and comfortable at the podium.

2.    Don’t be scripted. You should never draft every word of your oral argument. Instead, you should draft an outline of the substantive points that you want to make, and trust yourself to articulate those points effectively and persuasively. When you memorize a script, you appear rehearsed and thus inauthentic.

3.    Watch your conduct at the counsel table. Being professional and respectful is vital to ensuring your credibility with a court. Thus, be sure never to show emotion at the counsel table, either toward your teammates or in response to your adversary’s arguments. The failure to do so is unprofessional and immature – and will cost you points. When a moot court or mock trial team, for example, displays unprofessional conduct at the counsel table, they signal to the judges that they are not a good team.

4.    Be flexible and concede weaknesses in your argument. Every argument has weaknesses, whether on the facts or the law. Denying these weaknesses, particularly in the face of difficult questions from the judges, will affect your credibility and persuasiveness. Thus, be sure to concede weaknesses in your argument, such as by acknowledging unfavorable facts or law, and explain why such weaknesses do not affect the outcome you seek.

5.    Answer the judges’ questions directly and persuasively. The key to an outstanding oral argument is how you respond to the judges’ questions. Those questions tell you precisely what the judges are concerned about or focused on when deciding the merits of your case. As such, you should answer the judges’ questions directly and persuasively, and not offer evasive or non-responsive answers, which will compromise your credibility. In other words, do not view the judges’ questions as an attack on your argument. View them as an opportunity to make your case.

6.    Be willing to adapt and modify your argument (or desired remedy) based on the judges’ questions. Far too often, oralists propose a categorical rule – or seek a particular remedy – and relentlessly advocate for that rule or remedy regardless of the judges’ concerns. That is a mistake. You must demonstrate flexibility – within reason – to ensure that you obtain the best result, even if it is not the perfect result. For example, if you were arguing that Roe v. Wade should be overturned, and a majority of the justices on the United States Supreme Court suggested through their questions that they were unwilling to do so, yet were willing to impose stricter limits on the time within which a woman could seek an abortion, you need to pivot and explain why, in the absence of overturning Roe, such a limit would be warranted. In other words, you must exercise good judgment in the moment and, based on your perception of how the judges might rule, propose alternative remedies that will persuade the judges even if it means not getting everything you want. Remember that the best is often the enemy of the good.

7.    Be prepared. The best advocates are the most prepared. They know the page and line numbers of deposition testimony.   They know precedent by heart and can recite the holdings and dicta in relevant cases without notes or hesitation. Simply put, the best advocates are the most prepared advocates.

8.    Non-verbal conduct is critical to persuasion. It’s not just what you say, but how you say it. When you are making an oral argument, know that your hand gestures, your tone, your cadence, your volume, and your movement all matter tremendously. If, for example, you speak in a monotone voice, it doesn’t matter how persuasive your argument is or how much the law supports your argument. You will lose points and minimize the persuasive value of your argument if your non-verbal conduct (how you say it) is not as powerful as your verbal conduct (what you say).

When Your Opponent’s Brief is a Headscratcher

 “I’m glad you have to write the reply brief, not me.” That’s the whole email I received from a prominent appellate advocate who had written an amicus brief supporting my position after he had read opposing counsel’s brief. The difficulty he alluded to was not because the responsive brief was so stellar that I would be hard pressed to formulate winning counterarguments. Instead, it was because the brief was such a head-scratcher. We weren’t just ships passing in the night; we were sailing in different oceans.

When that’s the case, writing a reply brief can be extraordinarily difficult. It is far easier to argue with an opponent who engages you than one that seems to have dropped in from another case altogether. A well-researched and disciplined brief provides a better foil than one that lacks a theme or anything solid to refute.

More typically in a reply brief, one can argue that one set of precedents is more relevant than another, that key cases were misconstrued by your opponent and the court below, or that the issue presented is one of first impression, requiring a new rule. Yet, when the opposing brief states seemingly valid propositions that relate to the case but not to the issue presented, it is tempting to say that the brief fails in every way to address the appellants’ arguments and that those arguments remain valid and should be adopted by the Court. And, there is certainly good reason to make sure the court understands why the arguments made by your opponent lack relevancy.

Yet, underlying the propositions of law proffered by my opponent were assumptions, sometimes unexpressed, that clarify why that brief provides no useful guidance to a court. In my brief, I labeled them fallacies that constituted an act of misdirection. I ran through six separate fallacies that knocked the legs out from under those arguments – at least, to me, they powerfully served that purpose.

For example, my opponent argued that a rule of civil procedure cannot alter substantive law. We know that that is a correct statement of law. Federal law, 28 U.S.C. § 2072(b), denies civil rules from abridging, enlarging, or modifying any substantive right. Having made the valid point, then opposing counsel did little to connect that to the rule at issue. He asked the court to assume that my argument would make the rule substantive. And, my reply demonstrated that following the proper procedure implements the underlying substantive law, rather than changes it.

Similarly, he recited the holding of a case I cited, as though that holding is the sum total of the analysis, because our case did not fit that holding. Yet, my brief suggested that the type of analysis employed in the case supported the analysis appropriate to the issue. While dicta of the type I relied upon does not formulate binding precedent, it was from the U.S. Supreme Court and therefore takes on a heightened character. As the Sixth Circuit put it recently, “Supreme Court dicta is persuasive and cannot be ignored by lower courts for no good reason.” Cunningham v. Shoop, 23 F.4th 636, 659 (6th Cir.), cert. denied, 143 S. Ct. 37 (2022).

It is also tempting to ignore, for good reason, a brief you believe fails to advance your opponent’s case. Prudence, however, requires that you make clear to the court that your version of the case is the one that it should entertain.

The 2023 Justice Donald L. Corbin Appellate Symposium

On March 30 and 31, the Pulaski County Bar Foundation will be hosting its Annual Justice Donald L. Corbin Appellate Symposium at the University of Arkansas Little Rock Bowen School of Law.  This national symposium honors the late Justice Donald L. Corbin of the Arkansas Supreme and Appellate Courts.  The event offers the chance to discuss and learn about the appellate process from federal and state judges, professors, and experienced practitioners in beautiful Little Rock.  You can tour the Clinton Library too! 

The impressive lineup this year includes many members of the appellate bench:

• A United States Court of Appeals panel discussion with Judge Michael Y. Scudder of the Seventh Circuit, Chief Judge Lavenski R. Smith of the Eight Circuit, and Judge Jane Kelly of the Eight Circuit;
• Judge Morris S. "Buzz" Arnold, United States Court of Appeals for the Eighth Circuit, speaking on ethics;
• A state Supreme Court panel discussion with Justice Courtney R. Hudson of the Arkansas Supreme Court, Justice Holly Kirby of the Tennessee Supreme Court, and  Justice Piper D. Griffin of the Louisiana Supreme Court;
• Justice Annabelle Imber Tuck (Retired), Arkansas Supreme Court, speaking on oral argument; and
• An Arkansas Court of Appeals Panel Discussion with Judges Cindy Thyer, Wendy S. Wood, and Stephanie P. Barrett.

Robert S. Peck, of the Centers for Constitutional Litigation, will be speaking on framing issues for appeal, and How Appealing's founder Howard Bashman will present as well, along with several other appellate practitioners and professors. 

You still have time to register, and you can find all of the details here:  https://www.pulaskibarfoundation.com/corbinsymposium.

This year, I am honored to be speaking on appellate brief writing, and I invite you to join us at the beautiful Bowen School of Law for the 2023 Corbin Symposium.  Plus, if you have never been to Little Rock, I highly recommend a visit.  Trust this Chicago gal living in Los Angeles, Little Rock is a charming and welcoming town with big city amenities in a gorgeous part of the country.  See you there!

Appellate Advocacy Blog Weekly Roundup Friday, February 17, 2023

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• Adam Feldman at Empirical SCOTUS posted an historical look at the timing of Supreme Court decisions. The post compares the pacing of this year’s releases to past pacing.
  
  
• On Friday, March 17, the Supreme Court will honor the memory of Justice Ruth Bader Ginsberg. The Court will hold a meeting of the Supreme Court’s Bar, followed by a special sitting of the Court. The bar meeting will be held at 1:45 p.m. in the Upper Great Hall and will feature several notable speakers, including Honorable Elizabeth B. Prelogar, Solicitor General of the United States. The meeting will be live-streamed on the Court’s website: www.supremecourt.gov. See the Supreme Court press release.
  
  
• After the filing of the Solicitor General’s brief announcing that the end of the public health emergency will moot the case, the Supreme Court has cancelled oral argument in the challenge to the Biden administration’s attempts to end Title 42 (see previous coverage from this blog). Title 42 is the pandemic-era immigration measure that has allowed migrants, even those who might otherwise qualify for asylum, to be quickly expelled at the southern border. Last year, when Title 42 was challenged, the Federal District Court set a deadline for the end of the measure, finding that the measure did not advance public health but did endanger immigrants. When the Biden administration did not appeal that ruling, 19 states sought intervention to defend Title 42 and asked to stay the deadline. The Court of Appeals for DC denied the stay finding that the Petitioner States had not timely intervened. On appeal of that decision, the Supreme Court agreed to hear only the question of whether the Petitioner States had properly intervened and granted a stay to maintain the status quo. Oral argument was set for March. The Solicitor General’s brief states that the expected end to the public health emergency will moot the case: “ the end of the public health emergency will (among other consequences) terminate the Title 42 orders and moot [petitioners’ attempt to intervene].” Today, the Petitioner States filed a reply arguing that the end to the public health emergency does not moot the issue presented by the case: whether the petitioner states properly intervened. See reports from CBSNews, Politico, and CNBC.

Appellate Court Opinions and News

• The Third Circuit ruled that Johnson & Johnson was not in financial distress when it filed for bankruptcy, and the court rejected J&J’s attempt to move the close to 40,000 talc lawsuits against it to bankruptcy court. The ruling creates a new financial distress standard and seems to undercut the use of what’s known as the Texas two-step bankruptcy strategy. To avoid much of the financial liability it faces from the talc-cancer suits, J&J employed the Texas two-step: J&J created a subsidiary and transferred liability for the talc-related claims to the subsidiary; then the subsidiary filed for Chapter 11 bankruptcy, claiming insolvency. If permitted, the strategy could have allowed J&J to avoid much of the financial liability it faced from the mass tort talc cases. The court ruled that J&J’s agreement to fund the subsidiary’s liabilities made J&J the subsidiary’s ultimate financial safeguard and that was “not unlike an ATM disguised as a contract.” See a 2022 WBUR discussion of the Texas two-step strategy and see the decision and reports from The Wall Street Journal, Reuters, Bloomberg, and NBCNews.
  
  
• The Fifth Circuit found unconstitutional a decades-old law barring domestic abusers from possessing firearms and ruled that those convicted of domestic abuse have an unrestrainable right to bear arms. The decision stated that the statute contradicts an “historical tradition” allowing access to guns. The court determined that the statute gives too much power to Congress to determine who qualifies as “law-abiding, responsible citizens.” The opinion seems to compare domestic abuse to crimes like speeding, political non-conformity, and failing to recycle. The ruling earned a rebuke from US Attorney General Merrick Garland, who said: “Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. … Accordingly, the department will seek further review of the Fifth Circuit’s contrary decision.” See the ruling and reports from Bloomberg, CNN, and The Hill.

Other News

• The Senate confirmed Cindy Chung for the Pennsylvania federal appeals court; she will be the first Asian American to sit on the Third Circuit. See reports from Reuters and Bloomberg.

Latinate v. Anglo-Saxon terms in legal writing

English is a funny animal. It reached its namesake land after the Roman Empire fell and tribes from Northern Germany and Denmark (Angles, Saxons, and Jutes) invaded and settled what had up to then been peopled by people who spoke Celtic languages (who, according to John McWhorter, likely contributed the use of what he calls "meaningless do" to our language). A few hundred years later, Vikings invaded (speaking another branch of Germanic language) and, by speaking Old English poorly, simplified it, ridding it of many declensions and complicated verb conjugations. A few hundred years after that, some French-speaking Vikings from northern France (Normans) invaded and took over. Between the Norman invasion and middle-aged efforts to expand the English vocabulary with Latin-root words, it suddenly had a bunch of synonyms, with the Latinate terms generally in use among the nobility, and the Germanic terms generally in use among the lower classes--beef v. cow; pork v. pig; cordial v. hearty; reception v. welcome, etc. 

Though we are many centuries separated from those days, their legacy remains in the tone that our words convey. If you were to say that someone gave you a cordial reception, you would picture a formal event with well-dressed, high-class people drinking champagne; if you were to say that someone gave you a hearty welcome, you would picture a bunch of men in beards, wearing flannel shirts and drinking beer. Right? Though we don't think about it consciously, we tend to associate Latin words with formality and fanciness, and Germanic words with concrete and everyday things. 

For this reason, many law students think that they sound more authoritative when they use more Latinate words. But the effect of that is too often too many words saying too little. Sprinkle in some passive voice and a bunch of nominalizations, and you've got yourself some nearly impenetrable prose.

If your writing is hard to unpack, the odds that your reader will follow and agree with your argument go down. To cure this, focus on a few things. First, look for "to be" verbs and get rid of as many as possible. Second, put in actors before the action. Third, prefer verbs to nominalizations. Finally, when choosing your words, generally prefer ones of Anglo-Saxon origin. If you don't know a word's origin, just put it into an online etymology dictionary.  If you can't think of a good synonym, go to a thesaurus until you find a Germanic one. Doing these things will make your writing more straightforward and concrete. That way, you won't tax your reader's attention nearly as much, which will increase the odds that you will persuade her. And that's what we're all after in this business.  

The Future of Citations: Moving Them, Modifying Them, or Just Cleaning Them Up

Ah, citations. Some appellate advocates may see these as the bane of their writing existence. But, of course, they perform an important--indeed, an essential--function in supporting an appellate advocate's argument. Without them, a judge reading your brief would never know if your point is backed up by precedent or not. Even so, it is worth thinking about how citations can be made less burdensome while still being useful to an appellate court.

Let's start with the Bluebook. While almost universally accepted as the authority on citations, there are some alternatives. And courts often have their own style guides. Perhaps an overhaul of how we've always done things is in order including whether to use something other than the Bluebook.

Further, various legal writing experts have made suggestions about reforming citations. One of the legal writing experts that has long advocated for change is legal writing guru Bryan Garner, who has contended that citations should be moved from the text to footnotes. See Bryan Garner, The Winning Brief 114-19 (1999). Of course, not everyone--well, maybe hardly anyone--has made that change. I, for one, am just fine where they are. Frequent readers of briefs have learned how to simply ignore the citations as they read, unless, of course, they want to know what is being cited. But this doesn't mean we can't think about it.

Some courts also have implemented new ways to cite cases. A recent movement has been toward what is commonly called "universal citation." This citation form is sometimes referred to as "media neutral" or "vendor neutral." Ostensibly, the idea is to make locating an authority easier. It also steers advocates away from citing proprietary products of any particular publisher. And it directs the Court to a specific paragraph of a decision rather than just to a specific page. Apparently, this is not a new idea. The ABA recommended the use of universal citation in 1996. And as of August 31, 2020, at least sixteen states had implemented universal citation.

But not all of these state-mandated modifications have survived. Who would have thought that the North Carolina Supreme Court's first "controversial" ruling (but not its last) after flipping from a 4-3 Democratic majority to a 5-2 Republican majority would be to abandon universal citation just two years after it was implemented? Interestingly, the administrative order rescinding the requirement noted two dissents.

The other newest sensation in the world of citations is the use of the parenthetical "cleaned up" to replace the bulky parentheticals of the past. But now there is a new contender thanks to--again--the North Carolina Supreme Court. Although that Court has used "cleaned up" in at least 200 cases since February 2000, it more recently has in 33 decisions utilized instead the parenthetical "extraneity omitted." It does not appear that any other appellate court in the country has used this parenthetical. I'm not sure that one is going to catch on, but I'm open to it--particularly because I have been known to appear before that Court on occasion.

Are there other ideas for simplifying citations? Making them easier for practitioners? More helpful for the appellate courts? Maybe ChatGTP can come up with something, although I understand it has had some trouble with legal citations. Regardless, citations aren't going away. We might as well try to make them better.

Rethinking First Amendment Jurisprudence

The First Amendment to the United States Constitution protects the rights to freedom of speech and religion, which are essential to liberty and an informed citizenry. Indeed, the original purpose of the First Amendment was, among other things, to create a “marketplace of ideas” in which diverse opinions on matters of public concern, however unpopular, distasteful, or offensive, are rightfully protected. And the United States Supreme Court’s First Amendment jurisprudence reflects steadfast adherence to these principles, with the Court holding in numerous cases that a robust and expansive right to free speech is critical to ensuring liberty, autonomy, and a society where diverse viewpoints inform citizens’ views on various political and social issues.

But shouldn’t there be a limit?

Aren’t there some types of expression that are so vile, so valueless, and so vituperative that neither the Constitution nor the courts should afford them protection?

The answer to both questions is yes.

Think about it:

• Should people be permitted to hurl racist slurs at minorities? No.
• Should they be allowed to stand outside the funeral of a deceased gay soldier who died in the Iraq War with signs that say, “God Hates Fags?” and “Thank God for 9/11?” No.
• Should a newspaper have the freedom to publish a satirical depiction of a famous evangelical minister having sex with his mother in an outhouse? No.
• Should people be allowed to depict horrific acts of animal cruelty? No.
• Should wealthy individuals be permitted to donate millions to political candidates knowing that such donations will give them unfair influence in and access to the political process? No.
• Should Nazi groups and the KKK be allowed to march on Main Street spewing antisemitism and racism? No.
• Should people be allowed to wear t-shirts with a symbol of a Nazi swastika? No.
• Should pro-life groups be permitted to march with signs depicting dismembered fetuses? No.

Such speech should be banned everywhere and in any circumstance for three reasons.

First, speech such as that mentioned above has absolutely no value. It contributes nothing whatsoever to the “marketplace of ideas,” an informed citizenry, or a functioning democracy. And neither the text nor the original purpose of the First Amendment supports allowing individuals to express utterly valueless speech when it is expressed for the purpose of demeaning or traumatizing others, including vulnerable and marginalized groups.

Second, such speech causes substantial and often lasting harm. Make no mistake: speech can and does traumatize individuals, often causing severe emotional distress and other psychological injuries. Think about it: how would you feel if, as a minority, someone hurled a racist slur at you? How would you feel, as a person of Jewish faith whose great-grandparents died in the Holocaust, if you had to tolerate people marching with Nazi swastikas? How would you feel if, as a homosexual, someone called you a fag? To ask the question is to know the answer. Such speech serves no public purpose whatsoever.

This is not to say, of course, that offensive, distasteful, and unpopular speech should be restricted in any manner whatsoever.  Indeed, such speech may and often does cause emotional distress. It is to say, however, that there is a limit. When speech has no value whatsoever and is intended to – and does – traumatize others, it should enable individuals to sue for the resulting emotional harm.

Some may argue that limiting such speech will empower the government to enact content-based restrictions on speech with which it disagrees. This slippery slope argument is without merit. First, the Supreme Court has already recognized limits on free speech, such as in Miller v. California, when it held that obscene speech that appeals to sexual interests receives no First Amendment protection, and in Brandenburg v. Ohio, where the Court held that words intended to incite violence lacked First Amendment protection.[1] Second, the solution to this problem is obvious: enact a statute that delineates with specificity the precise words or expressions that are prohibited. In so doing, the limits on speech – which admittedly should be narrow – will be unambiguous. In Germany, for example, it is a crime to publicly deny the Holocaust – and for good reason.

Additionally, some may argue that the standards used to determine what speech should be limited will be invariably subjective and will thus lead to arbitrary and unconstitutional restrictions on speech. But this argument misses the constitutional mark. Many, if not most, constitutional provisions require subjective value judgments, such as whether a punishment is cruel and unusual under the Eighth Amendment, whether a search is unreasonable under the Fourth Amendment, and whether counsel is ineffective under the Sixth Amendment. Moreover, banning the type of speech mentioned above is hardly subjective. Any reasonable person with a conscience would agree that this speech has no value and inflicts severe injury on its targets.

The United States Supreme Court, however, is reticent to support any limits on speech other than sexual obscenity and fighting words. In Hustler Magazine, Inc. v. Falwell, for example, the Court held that the First Amendment protected a depiction of the Reverend Jerry Falwell having sex with his mother in an outhouse.[2] In Snyder v. Phelps, the Court held that the First Amendment protected members of the Westboro Baptist Church who held signs stating “God  Hates Fags” and “Thank God for 9/11” outside the funeral of a deceased military veteran.[3]

These decisions were wrong.

The notion of allowing individuals to express offensive, distasteful, and unpopular speech should not preclude reasonable limits on valueless speech that cause severe emotional harm. It’s one thing, for example, to say that homosexuality is a sin. It’s quite another to call someone a fag. It’s one thing to say that abortion is immoral. It’s quite another to shove pictures of dismembered fetuses in the faces of women trying to access abortion services. In each example, the former should be protected, and the latter should not. The distinction is predicated on value and injury.

Ultimately, a society that values liberty, autonomy, and democracy need not tolerate valueless speech that contributes nothing to public discourse, and that marginalizes others, causes others to commit suicide, or humiliates others in a manner that causes lasting harm.

If you disagree, let’s see how you feel when, if you are gay, another person shoves a sign in your face that says, “God Hates Fags” or, if you are Jewish, a person shoves a sign in your face that says, “The Holocaust Never Happened.” You know exactly how you’d feel. That is the point – and the problem. And it’s a problem that needs to be solved – now.

 

[1] 413 U.S. 15 (1973); 395 U.S. 444 (1969).

[2] 485 U.S. 46 (1988).

[3] 562 U.S. 443 (2011).

Paragraphs and Pilcrows

This blog has featured paragraph-pertinent musings before. Today I hope to share a little about the petite pilcrow, offer some guidelines for proper paragraphing, and provide a tip for formatting with pilcrows in legal writing.

What is a pilcrow?

If you are an attorney, you have likely been using the pilcrow for years.  I certainly have, but until today I did not know its name (how impolite!).  The pilcrow is the paragraph symbol: ¶. 

I stumbled upon a fascinating article on the origin of the pilcrow.  According to the article, "pilcrow" evolved from the very fitting Greek word paragraphos for "write beside."  It iterated through French (paragraph) and Middle English (pylcrafte) to "pilcrow."

The symbol was originally written on a page to signal changes in topic or speaker, similar to its function today.  It started out looking like a K, then morphed into a C in a nod to "chapter" differentiation.  Ultimately scribes added a line to the C to distinguish the mark from the rest of the sentence, then the symbol stretched and straightened into the ¶ we know today. 

The symbols became quite ornamental, requiring extra time for decoration at the end of a written document, and when the scribes ran out of time to finish the decorating, they left out the pilcrows altogether.  That is why we generally use pilcrows in legal writing only to separate statutory paragraphs and cite complaint allegations, not at the beginning of our paragraphs.

What is a proper paragraph?

If a pilcrow developed to separate speakers and topics, how do we mimic their function in our prose?  Paragraphs should follow some basic guidelines in legal writing to make the document easiest to read and comprehend.

Contains an average of 150 words

As has been said, Bryan Garner recommends that paragraphs average about 150 words, and no more than 250 words.  Some writers recommend three to eight sentences.

These are good rules of thumb.  When your topic is complex or involves large or unfamiliar words, err on the side of fewer, shorter sentences in your paragraphs.  Capitalize on readers' ability to process small chunks of information at a time and provide them necessary breaks in the word flow.

Conveys a distinct thought

Besides length, you can decide to start a new paragraph when you begin writing a distinct thought.  While all thoughts in a brief should connect to the main idea and ultimately seek the same relief, slight variations in thoughts or angles of the argument should trigger new paragraphs.  Cramming too much into one paragraph contradicts the small chunk principle and makes the reading a slog.

Has a topic sentence

In the same vein, every paragraph should have a topic sentence.  The topic sentence signals what each paragraph is about and how it is different from the paragraphs before and after it.  As you edit your writing, use your topic sentences to cut extraneous material from the brief.  Legal writers should never aim to repeat themselves.  Judges are intelligent folks.  You need not say the same thing five different ways; once is sufficient.

Starts with a meaningful transition

Finally, while you need not repeat yourself when you have made your point, it is always beneficial to link distinct thoughts between paragraphs.  Legal readers are looking for connections between concepts and logical through lines in your argument.  Make those explicit.

How do I ensure my pilcrows never hang alone at the end of lines?

This is one of the easiest ways to clean up a brief before you even finish writing.  You can eliminate lonely pilcrows hanging at the edges of lines of text by adding a nonbreaking space (CTRL + Shift + S) after every pilcrow.  The nonbreaking space, which looks like a small open circle when you show formatting, holds the pilcrow and following number together (¶ 1).

You can even build in an automatic nonbreaking space every time you type a pilcrow using Word's AutoCorrect feature.

Step 1:

A.   Insert > Symbol > More Symbols > Special Characters > Paragraph > Insert // Or type ALT + 0182

B.    Insert > Symbol > More Symbols > Special Characters > Nonbreaking Space > Insert // Or type CTRL + Shift + S

Step 2: Copy those two characters (CTRL + C).

Step 3: File > Options > Proofing > AutoCorrect Options > Replace

Step 4: “Replace” box > Paste the two characters you copied (CTRL + P).

Step 5: Backspace over the nonbreaking space. Only one character should be in the box.

Step 6: “With” box > Paste the two characters again. Backspace over any additional space at the end.  Only two characters should be in the box.  One is your invisible nonbreaking space.

Step 7: OK

Presto!  Proper paragraphs and partnered pilcrows in perpetuity.

Should Courts Dispense With the Table of Authorities?

Pending before the Arizona Supreme Court is a petition to change court rules and dispense with the table of citations in state briefs. According to the full petition,

The Table of Citations is no longer needed to help a reader navigate to a particular cited source because most briefs are filed in electronic format with searchable text. Cumulatively, appellate litigants spend an unjustifiable amount of time and resources creating Tables of Citations.

The authors claim that readers now use "searchable text and hyperlinks to navigate the brief and locate cited authorities," rather than the table. The tables, are incredibly time-consuming to create:

Petitioners have found no data-driven analyses on the average length of time it takes to build a Table of Citations. Anecdotal estimations, however, abound. For example, the company ClearBrief—which sells AI software that formats and edits appellate briefs—claims that its “conversations with hundreds of attorneys, paralegals, and legal assistants across the country, indicate that manually creating a perfectly formatted and accurate Table of Authorities can take anywhere from 3 hours to a full week, depending on how complicated the document is.” See Clearbrief, How to Create a Table of Authorities in One Click in Microsoft Word, https://clearbrief.com/blog/authorities (last accessed Jan. 8, 2023). Considering that this source is selling a tool that builds Tables of Citations, Petitioners take the high end of that range with a grain of salt. 

Still, U.S. Supreme Court Justice Antonin Scalia and noted legal writing scholar Bryan Garner warn advocates to “[a]llow a full day” to prepare a Table of Citations, and to “[n]ever trust computers to prepare the tables automatically.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 90 (2008). Experienced advocates working for a firm or company willing to pay for assistive software might manage to generate a perfectly formatted and accurate Table of Citations in less than 45 minutes. Meanwhile, a litigant without access to these programs may spend considerably more time using Word’s built-in citation-marking tool. The tool is not intuitive, and an average-length brief requires anywhere from a couple of hours to a full day to manually mark the citations, depending on the user’s familiarity with the tool. And, many self-represented litigants, particularly inmates, write out their Table of Citations by hand. 

. . . .

Even accounting for time savings from modern technology, the time it takes to compile the Table of Citations, confirm its accuracy, and correct any errors is not insignificant. And all this work must be performed after the substantive briefing is complete, meaning parties are often running up against their deadlines by the time they are ready to build the table. This leaves no room for last-minute adjustments, which creates its own challenges in cases where the drafting attorney needs to seek feedback from a supervisor, trial counsel, or a client. And in both criminal and civil litigation, “the time it takes” translates into actual dollars—either billed to a client at hundreds of dollars an hour or in salary paid to State-funded employees. It is the litigants and taxpayers who ultimately bear these costs.

Petitioners claim that, given the fact that most Arizona courts have now moved to electronic briefs, the "court's infrequent use of the table of citations as a navigational tool renders the cost unjustifiable." They likewise dismiss the non-navigational uses of the table:

Although few people use the Table of Citations as a navigational tool, some have found non-navigational uses, including: (1) to get a “feel” for the case before reading the brief; (2) to check whether a draft decision addresses the main authorities cited by parties; (3) to prepare for conferences or oral argument; and (4) as an aide for finding the correct citation when the citation in the body of the brief is incomplete or inaccurate. See Ball, Jancaitis & Butzine, Streamlining Briefs, at 33–34. None of these uses justify the continued requirement that briefs contain a Table of Citations.

First, readers can “get a feel” for the case by reading the introduction, summary of the argument, and the table of contents. Separately, while first impressions are inevitable when reading any brief, “feeling out” the argument serves little purpose for the end result. Appellate courts base their decisions on the law and facts of the case, not initial impressions. The substance of the arguments should be far more persuasive than a mere list of authorities.

Second, while the Table of Citations may make the brief more formal and emphasize the need to support arguments with legal authorities, other procedural rules and formatting requirements compensate for the loss of the Table of Citations. See, e.g., ARCAP 13(a)(7)(A) (requiring appellate argument contain the litigant’s “contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities . . . .”). Moreover, formatting rules are meant to “promote succinct, orderly briefs that judges can readily follow.” Judith D. Fischer, Pleasing the Court: Writing Ethical and Effective Briefs, 51 (2d ed. 2011). That purpose is not served if the Table of Citations is being used merely to test an advocate’s ability to follow directions. Other aspects of the brief can provide that signal while also improving readability.

Third, while some use the Table of Citations to gather sources to download or refer to at oral argument, it is not a necessary tool to complete either task. More practitioners are hyperlinking their briefs so courts can easily access the cited material as they read the brief. And relatively few cases have oral argument, further diminishing the value of the Table of Citations for this particular purpose.

Finally, the use of the Table of Citations as a “backup” for locating correct citations when they are missing in the body of the brief is unlikely to occur with sufficient frequency to justify the time and resources spent creating the tables. From a logical standpoint, if a litigant has not spent the time ensuring their citations in the body of the brief are accurate, it is unlikely they will have a reliable Table of Citations, or in some cases, any table at all. See State v. Haggard, 2 CACR 2010-0307-PR, 2011 WL 315537, at *2, ¶ 8 (Ariz. App. Feb. 1, 2011) (mem. decision) (attempting to identify cases vaguely referred to in a pro-per brief and noting that no Table of Citations had been provided).

I agree with much of what the Petitioners say. The tables do take a lot of time to prepare, and there are not a lot of great, free, resources for making the tables. I see this with student briefs all the time. I always warn my students to leave time to prepare the tables, and they don't. They then usually comment that they had no idea how time-consuming the tables were to create (despite my prior warning).

Still, I hope that the Supreme Court keeps the table. First, although most briefs are now filed electronically, my research for Winning on Appeal revealed that many judges still like to read briefs in paper form. This means that the table does still play a navigational role. I also find tables useful to identify what cases the parties relied upon. This is more than just getting the "feel" of a brief. It tells me the strength of the reasoning and points me to where in the brief I need to look if I am concerned about a particular case. I think that we often forget how important citations are to the courts. I blogged on this several years ago when talking about citations in footnotes:

Last week, over at The Volokh Conspiracy, Eugene Volokh blogged on this very topic, quoting a district court opinion that stated, 

The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." The Court strongly discourages the parties from footnoting their legal citations in any future submissions.

Eugene also mentioned a federal appellate judge who told him "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

I do agree that we need more technology tools to make efficient tables, and I would be happy to highlight any such tools in this blog (just shoot me an email!).

A Call for Law Over Politics

In the novel Guy Mannering, Sir Walter Scott wrote that a “lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect.” As lawyers and especially as appellate advocates, we aspire to creating an edifice where the rule of law governs and not simply the politics of the day. We seek to design the law to withstand political winds while capable of change though remaining true to rules and standards that sensibly apply regardless of the ascendant ideologies.

It is not an easy task, and we are not always very good at perpetuating that approach. Sometimes, our inability to do so leads to embarrassment and harm to the rule of law. Other times, it leads to revolutionary and welcome change. Rarely, though, do we realize which outcome is most likely going to result until significantly later as we look back retrospectively.

Today, our courts have lost enormous public confidence and respect, traits that are essential to their salutary operation. We have seen the rhetoric of politics in the place of timeless legal principles populate judicial opinions — and appellate briefing at levels and rates that mark a departure from past instances of the same developments.

New evidence of the escalating trend may have emerged from the North Carolina Supreme Court. The new year saw that court flip from a 4-3 Democratic majority to a 5-2 Republican majority (use of party labels is perhaps unsettling but unavoidable in this instance). The new majority has granted petitions for rehearing in two election law cases: one involving redistricting and another on a voter identification law.

Reconsideration of this type is normally used when a court made its decision under a misapprehension of the record or some other error that demands correction. It is an extremely rare event. Here, it is clear that the law is unchanged, and there are no evidentiary issues. The only thing that changed was the membership of the court — and that is a troubling basis for reconsideration.

            As Justice Anita Earl put it in dissent from the grant of reconsideration:

it took this Court just one month to send a smoke signal to the public that our decisions are        fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench. The majority has cloaked its power grab with a thin veil of mischaracterized legal authorities. I write to make clear that the emperor has no clothes.

Hall v. Harper, No. 413PA21 (Feb. 3, 2023) (Earl, J., dissenting).

I write this post in a bit of a state of shock, simply because of how blatant and clear the coming reversal is. If law is not to become little more than a yoyo or roller coaster ride, it cannot simply become the spoils of political warfare. As much as there are precedents that I hope will be overturned, and there are past examples of judicial composition driving changes in the law, this precipitous reversal of field renders the law less the work of architects and more a political game where appellate advocacy becomes less relevant. Rather than the rule of law, the rule of seat warmers prevails.

 

 

 

Third Circuit's Proposed Filing Time Rollback Would Reduce Practitioners' Autonomy

The Third Circuit has been in my news feed this week.  Chief Judge Michael Chagares has proposed to roll back the Third Circuit Court of Appeals' filing deadlines from 11:59 pm to 5:00 pm.  The offered justification for the proposal?  Work-life balance.

But of course.  The child of self-preservation, work-life balance has become a go-to intrinsic good.  (What would our grandparents have to say about this, I wonder?)  Unfortunately, citing this popularized concept can also stifle discourse.  Who can argue with the hallowed and lofty buzzphrase of "work-life balance"?

I offer a counterpoint: autonomy.  This is the intrinsic good we should promote in filing deadlines and much else in the legal profession. 

Consider junior associates with very little autonomy over their work and schedules.  They want to know their contributions are valuable, but they don't have the time or autonomy to add value where they already have a leg up in subject matter expertise.  Consider mid-level associates hammering out tricky (or mundane) legal issues in dispositive briefing, all while partners and clients and ping ping ping their phones and inboxes.  Consider working parents who have afternoon pickups and family frivolity to breathe life into their days between leaving the office and opening up their laptops before bed. 

All of us need autonomy in our work.  Work-life balance requires flexibility and autonomy, not harsh--even jurisdictional--cutoffs.  Autonomy gives people freedom to work at quieter hours of the day.  For me, that is often past 7 pm.  For others, it may be early in the morning.  The less harried we are, the more careful and thoughtful we can be.  Midnight filing deadlines give us breathing room to review commas and tables of authorities one more time.  And autonomy breeds creativity, which clients value and the legal profession needs to solve complex problems.

Moreover, the Third Circuit proposal appears to create a problem that does not exist.  In a 2018 study of federal docket filings, only one in ten docket entries in federal courts occurred after 5 p.m., and only one in twenty occurred after 6 p.m.  Most attorneys apparently file documents before 5 p.m., meaning the work-life balance concern is a minor one in federal courts. 

But for all of us who prize autonomy and crave its attendant flexibility in our practice--which transcends life and work stages--the midnight filing deadline is a gift.  We should not easily release it.

The Court is accepting public comments on its proposal until February 18, 2023.