Tuesday, April 29, 2014

More Writing for Judges

I understand readers appreciated my previous tips on writing for judges, so I'm posting some additional points lawyers should keep in mind when writing for judges.

Use pleadings to advance your case not air your grievances. I recently heard a trial judge talk about becoming frustrated with lawyers’ conduct toward each other. She said that in several cases, she has ordered lawyers to refund some of their fees for unnecessarily expanding litigation by fighting with each other—and has ordered those lawyers to send copies of her orders to their clients along with the check. How embarrassing for those lawyers. As I’ve said before, judges are extremely busy, and they quickly become frustrated with lawyers who cannot get along and file unnecessary pleadings because of that disharmony. Before you file a motion based on the opposing party’s or its lawyer’s conduct, think about these questions: What are the chances that motion will actually be granted? What value will the motion add to the client’s case? Is the opposing party’s conduct egregious enough to warrant court action? A judge’s job is to see cases to resolution, and judges generally don’t want to spend time addressing issues that don’t advance the litigation. Think twice before filing these types of pleadings.  

Know the standard and write with it in mind. Whether you’re writing a trial court or appellate brief, you must know the standard and keep it in mind at all times. Let’s consider the summary judgment standard: in order to obtain a grant of summary judgment, there must be no disputed material facts. Arguing that the facts most support your client’s position isn’t going to help—fact finders (not judges) decide factual disputes. One disputed material fact—even if small—means no summary judgment. So if there are disputed facts, you’ve got to argue those facts aren’t “material.” And on appeal, you’re probably not going to get anywhere by arguing the jury’s or judge’s findings of fact are wrong. In most cases, the standard of review for factual findings is “any evidence,” so if there is “any evidence” in the record to support the factual findings, those findings will be upheld. You’re either going to have to argue that there is no evidence to support the fact finder’s decision (a very difficult argument) or argue that the trial court misapplied the law (or misinstructed the jury on the law), which are reviewed under a much less deferential standard. Know the standard and write with that standard in mind.  

Don’t fudge the facts or law—even a little. “[A] lawyer’s credibility often rubs off on client credibility.” Stanley v. Tucker, No. 4:09cv162, 2011 WL 7664585, at *9 (N.D. Fla. Nov. 28, 2011). Lawyers must have a mastery of the facts of their cases and present those facts honestly and forthrightly to the judge. Even though some lawyers may not believe it, judges rely heavily on attorneys to educate them about the facts and the law. And you can be sure that if one party misstates the facts, the other party will correct that misstatement quickly. Cases on appeal are no different. Many appellate judges read the lower court’s opinion first. So if you mischaracterize the facts or the lower court’s findings, you’re digging yourself a hole before you’ve even had a chance to argue your client’s case. Fudging the law creates a “boy who cried wolf” situation. Judges and their clerks check authority. And if a judge believes an attorney is trying to “pull one over” on the judge by citing irrelevant authority or misciting relevant authority, the judge will have a hard time believing anything else the attorney says.   

You aren’t entitled to anything. I recall a case in which both parties moved for summary judgment. The judge denied both motions, and the parties were outraged, arguing that the judge had to grant one or the other. What the parties missed was that neither had proven entitlement to summary judgment. Neither had shown that the material facts were undisputed. Neither had sufficiently argued that its position was the only one supported by applicable law. So the judge denied both. Getting a case resolved through motions practice isn’t a right. You’re responsible for showing the judge why you’re entitled to what you want.

Draft a reply brief only if you need one. In an interview recorded in the Scribes Journal of Legal Writing, Judge Frank Easterbrook noted: reply briefs “aren’t really reply briefs most of the time; they’re just repeat briefs.” A reply brief shouldn’t be a regurgitation of the arguments in the initial brief. A reply brief should address arguments made by the opposing party in its response brief if those arguments weren’t addressed in the initial brief. If you knew what the opposing party would argue in its response and addressed those arguments in your initial brief, you likely don’t need a reply brief. If you do need to file a reply brief, keep it short and to the point. You can reference arguments made in your initial brief, but limit the substance of your reply brief to previously unaddressed issues and arguments.

Friday, April 25, 2014

Those Mean Buffalo Buffalo

This is a grammatically correct sentence: Buffalo buffalo Buffalo buffalo buffalo buffalo Buffalo buffalo.

How can that be?

Happy Friday!

Tuesday, April 22, 2014

Employing Ethos

Of Aristotle’s three persuasive strategies, ethos is the most difficult to explain. Ethos is essentially persuasion through the author’s good character. Many believe ethos is the most important of the persuasive techniques—unless the reader trusts and believes the author, the author’s attempts at logos and pathos will fail. 

Various writing techniques fall under the ethos umbrella including accurately citing authority, addressing bad facts and bad law, making the court aware of adverse authority, and avoiding attacks on other parties or the court.

Perhaps no brief better demonstrates how to deal with adverse authority than Jeremy Simmons’s brief in Simmons v. Roper. In his brief, Simmons argues that the death penalty is cruel and unusual punishment for minor offenders. But the Supreme Court had addressed that issue in 1989 in Stanford v. Kentucky—and found the death penalty was not cruel and unusual punishment for minor offenders. So Simmons takes the stare decisis head-on and argues that the death penalty became cruel and unusual for a minor offender as a result of the “evolving standards” of decency. He analogizes his situation to that of Daryl Atkins, a mentally retarded offender, who was sentenced to death. In Atkins v. Virginia, decided in 2002, the Court had reversed its prior course on the death penalty for mentally retarded offenders, and Simmons hopes the Court would do the same in his case:

As Atkins demonstrates, stare decisis is no bar to reconsideration of the holding in Stanford. Petitioner's argument to the contrary simply fails to acknowledge that the standards of decency embodied in the Eighth Amendment evolve “as public opinion becomes enlightened by a humane justice.” The very nature of the Eighth Amendment accordingly requires that the principle of stare decisis yield - as it did in Atkins - to compelling evidence that society's values have changed. Because such compelling evidence is present in this case, the judgment of the Missouri Supreme Court should be affirmed.

Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1947812, at *13 (internal citations and quotes omitted).

When he was a litigator, John Roberts faced some bad facts in representing Alaska against the EPA. You may recall that Alaska had designated Low NOx as the Best Available Control Technology (BACT) for a new generator at a large mine. The EPA thought that the more-expensive SCR technology was BACT. Unfortunately for Alaska, it had initially designated SCR as BACT and later changed its opinion—some would say because it was yielding to pressure from the mine. Roberts addresses the bad fact but tries to minimize it:

The EPA also noted that [Alaska] had found SCR “economically feasible” in its preliminary [report]. [Alaska’s] decision at that time to accept [the mine’s] emissions-netting proposal, however, had mooted any need to consider the impact of SCR costs, and in fact [Alaska] in the preliminary [report] did not analyze recent BACT decisions for similar sources or the site-specific cost considerations of imposing SCR. The decision in the final [report] not to rely on emissions savings necessitated such analysis and led to a more informed weighing of economic impacts.

Alaska Dept. of Envtl. Conservation v. United States Envtl. Prot. Agency, 540 U.S. 461 (2004) (No. 02-658), 2003 WL 2010655, at *43 n.13 (internal citations and quotes omitted).

Roberts also builds ethos by avoiding attacks on the Ninth Circuit or any individual judges—Roberts argues that the Ninth Circuit erred, but he avoids charged, disrespectful language:

The Ninth Circuit's decision that the State had only “initial responsibility” while the EPA had “ultimate authority” to make that determination introduces disabling uncertainty and confusion into the allocation of responsibility.


The Ninth Circuit's decision-requiring the States to go into federal court to challenge the EPA's invalidation of a BACT determination-also improperly shifts the burden of persuasion from the EPA to the States, undermining the deference to which a State's decision is entitled.


By allowing the EPA to short-circuit the state review process in this case, the Ninth Circuit also deprived Alaska of the opportunity to adequately defend its permit decision.

Id. at *36-37

You can use ethos to your advantage by following these tips:

-Address bad law or bad facts head on. You’ll gain credibility with the court by answering questions you know the court will ask. Argue that the bad facts don’t impact the outcome. Argue that unfavorable case law is distinguishable or an unhelpful statute is inapplicable to the facts of your case. Your candor will make you more credible, and by being the first to tell the court about the potential problems with your client’s case, you’ll also gain the added advantage of taking the wind out of your opponent’s sails

-Cite authority correctly. Make sure a case really says what you think it says before you cite it. And don’t use ellipses or other devices to improperly alter quotes. You’ll lose all credibility with the court if you mis-cite authority in an attempt to further your position. If you cite a case that’s been overturned on another ground, be sure to add a parenthetical to that effect. If you cite a dissenting opinion, note that through a parenthetical as well. Authority is the foundation law, so make sure you’ve provided the court with accurate authority.

-Use an appropriate tone. Avoid colloquialisms, informal words, and excessive artificial emphasis (bolding, italicizing, and underlining). Spell-check your document, include page numbers, make sure the font style and size are consistent, and follow the local rules. These things make you look like you care about being a professional. And courts take professionals seriously.  

-Avoid charged words when referring to an opposing party or the court. You should avoid these types of words: liar, foolish, absurd, crazy, kangaroo court, and the like. Of course, you can (and should) point out why an unfavorable case was decided incorrectly or is unpersuasive, why a lower court erred, or why a party’s testimony is not consistent with the facts, but do so in a respectful way.

Friday, April 18, 2014

Go Bananas, Go, Go Bananas

Judge Posner loves to put pictures in his opinions. You can see some of his prior pictures here and here and read those opinions on the Seventh Circuit Court of Appeals website.

Judge Posner recently issued another opinion containing a photo--and this one is really bananas! The plaintiff, known as the "Banana Lady," sued several credit unions for allowing their employees to take photos of her (and post them on Facebook) as she delivered a singing telegram at a credit union trade association event.

Posner squashed the Banana Lady's appeal, but not before putting a half-page picture of her in costume on the second page of the opinion.

The opinion is Conrad v. AM Community Credit Union, No. 3:13-cv-461, 2014 WL 1408635 (7th Cir. April 14, 2014). You can view it here.

Happy Friday!

Tuesday, April 15, 2014

Pathos and Persuasion

Pathos is the use of emotion to persuade. Unsurprisingly, pathos is often employed in criminal cases. Last week we looked at Simmons's brief in the Roper case, where Simmons argued that the death penalty is cruel and unusual punishment for minor offenders. Look at Simmons's lawyer’s use of pathos to try to convince the Supreme Court to overturn prior 8th Amendment precedent:

“[P]olice arrested Simmons, a 17-year-old high-school junior with no previous criminal convictions, at his school. Simmons was taken to the police station, where he waived his Miranda rights and was interrogated. Simmons initially denied involvement in the crime. After nearly two hours of interrogation, during which police accused him of lying, falsely told him that Benjamin had confessed, and explained that he might face the death penalty and that it would be in his interest to cooper-ate, Simmons began to cry and asked to speak to one of the detectives alone.”

Brief for Respondent, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1947812, at *1-2 (internal citations and quotes omitted).

You can also use pathos to make other parties look bad. Simmons’s counsel focuses on the bad behavior of an adult “friend” of Simmons, Moomey, who claimed to have heard Simmons planning the murder but did nothing to stop it:

Moomey - a 29-year-old who had served a prison sentence for burglary and assault - testified that he had a party at his house “every night” at which he drank until he passed out. A group of neighborhood teenagers, often including Simmons…attended these “parties.” Moomey explained that the teenagers wanted to come to his house “because most of them get picked on [b]y their parents,” and that they mowed his lawn, cleaned his house and car, and gave him rides in return for being allowed to “hang out” with him. The teenagers called themselves the “Thunder Cats,” and referred to Moomey as “Thunder Dad”
Moomey claimed that, at one of the nightly parties at his house before the murder, he had heard Simmons…discussing a plan to burglarize a house and kill the occupants, and that Simmons had told the others that “they could do it and not get charged for it because they are juveniles.” Moomey also alleged that, on the evening of September 9, Simmons had come to Moomey's house and told him that he had killed Mrs. Crook because she had seen his face. Moomey admitted that, after this conversation, he failed to contact the police until he was told they had his name and wanted to talk to him and that he was concerned about testifying because he believed he was being investigated in connection with the murder.

Id. at *3.

Look how Simmons’s counsel employs pathos. He doesn't say outright: Simmons is a scared kid and Moomey—whose testimony all but ensured Simmons received the death penalty—is an unsavory person who used kids like Simmons. Instead, he uses pathos subtly to lead the reader to that conclusion.

You can also use pathos effectively in other types of cases. Last week we looked at logos in John Roberts’s brief in the Alaska v. EPA case. Roberts also uses pathos effectively in that brief:

The partnership agreement between [native Inupiats and the Mine owner] provides for the training and employment of a local work-force, with caps on annual production to ensure long-term employment opportunities for the region. The agreement also provides for a committee of local Inupiat elders to oversee mining operations. The committee is authorized, for instance, to close the mine's road to protect migrating caribou. Royalty payments to…Inupiat shareholders-to be shared in part with all other Alaska Native corporations-are expected to total about $1 billion over the life of the mine. With nearly 600 workers, the mine's payroll represents over a quarter of the borough's wage base. Prior to the mine's opening, the average wage in the borough was well below the state average; a year after its opening, the borough's average exceeded that of the State.

Brief for Petitioner, Alaska Dept. of Environmental Conservation v. United States Environmental Protection Agency, 540 U.S. 461 (2004) (No. 02-658), 2003 WL 2010655, at *9 (internal citations and quotes omitted).

Follow these tips to use maximize pathos:

-Too much of a good thing…is too much. Pathos is best employed subtly. Avoid over-the-top pathos. Use facts, not adjectives and adverbs, to evoke an emotional response in the reader. Remember how John Roberts uses pathos in the Alaska brief. Nowhere does Roberts say: “The Red Dog Mine is critically important to Alaska and its great citizens—many of whom are heartbreakingly destitute.” Instead, he describes, in detail, how important the Red Dog Mine is to Alaska and its residents by talking about all the things the Mine does for the region—provides jobs, protects wildlife, pays native tribes for use of their land etc. The Roberts brief doesn’t hit the reader over the head with pathos. Instead, the Roberts method leads the reader to the writer’s conclusion. And the result is just what Roberts wants—for the reader to believe that the Red Dog Mine is very important and provides many benefits to Alaska.

-Pathos isn’t going to get you far without logos. Your client can be the most sympathetic party in the world, but unless the client’s position is legally and logically sound, pathos likely won’t do you much good. You must be sure to discuss the legal principals at issue and explain how the law supports your sympathetic client’s position.

-Consider starting with context, not facts. Good litigators use pathos to “set the scene” for their legal arguments. Look how Roberts does that in the Alaska brief—he doesn’t start by talking about Low NOx, SCR, or BACT. Instead, he sets the scene by talking about how the mine was discovered and what the mine means to Alaska. Then, when the reader has a “fuzzy feeling” about the mine, Roberts launches into a discussion of how Alaska handled the permitting decision.     

Friday, April 11, 2014

Amusing Alliteration

Alliteration is a stylistic device and occurs when words in close proximity share the same first consonant (or consonant sound). Judges sometimes use alliteration to make points or emphasize certain words. For example, in discussing claims of sexual harassment in the workplace, the Eleventh Circuit has noted that while severe harassment can be traumatic, that harassment "cannot be corrected without the cooperation of the victims." Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1290 (11th Cir. 2003) (internal quotations and citations omitted).

Judge Young, from the DC Circuit, has described police power, itself an alliteration, as "[a]n axiomatic but amorphous aspect of sovereignty." Amerisource Corp. v. United States, 525 F.3d 1149, 1152 (D.C. Cir. 2008). In another case, Judge Boggs, of the Sixth Circuit, dissented from a denial of an en banc hearing in a case involving a school board's right to open its meetings with prayer. The panel that heard the appeal found the prayer violated the Establishment Clause. In criticizing that holding, Judge Boggs noted: "Thus, if they are serious about suppressing those perceived evils, they must believe that the Constitution allows Marx but not Moses, Oprah but not Obadiah, and Emerson but not Ephesians." Coles v. Cleveland Bd. of Educ., 183 F.3d 538, 540 (6th Cir. 1999).

And Justice Cardozo has even provided a fun alliteration. In Murphy v. Steeplechase Amusement Co., the plaintiff suffered a knee injury on a ride aptly known as the flopper. Cardozo wrote: “The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was not seeking a retreat for meditation.... The timorous may stay at home.” 250 N.Y. 479, 482-83 (1950).

Some law-related alliterations include:
-sovereign citizen
-malice murder
-aggravated assault
-friendly fire
-symbolic speech
-adverse authority
-hell or high water (a contract clause)

Can you think of others?

Happy Friday!

Tuesday, April 8, 2014

Logos in Litigation

According to Aristotle, there are three types of persuasion: logos, ethos, and pathos. Logos is persuasion through reasoning and the effectiveness of supporting evidence. Because lawyers often rely heavily on precedent to support their positions, logos is used more often by lawyers than the other two techniques. But logos is about more than citing a case, explaining its holding, and telling the court it should follow that case. Logos is about convincing the court that your position is the only sound one.

When John Roberts was a litigator, he represented Alaska in a case against the EPA. Alaska intended to allow a mine, a large, private employer, to use a certain pollution control technology, Low NOx, on a new generator it had built. The EPA claimed that Alaska should have required a different control technology, SCR, and that Alaska acted arbitrarily and capriciously by finding Low NOx was the best available control technology (BACT). Alaska couldn’t dispute that installing SCR (rather than Low NOx) on the new generator would have resulted in lower emissions from that generator. But Alaska had struck a deal with the mine, and Roberts used the logic behind that deal throughout his brief:

Recognizing the mine’s unique and continuing impact on the regional economy of the Northwest Arctic Borough, [Alaska] determined that in light of SCR’s “excessive economic cost” —$2.9 million in capital costs with annual operating costs approaching $635,000—SCR was not economically feasible and that Low NOx was BACT for the MG-17 generator. Yet because [the mine] had agreed to install Low NOx on all its generators, [Alaska’s] permit decision was expected to result in lower overall NOx emissions than would occur if SCR—the EPA’s preferred technology—were installed only on the [new] generator.

Brief for Petitioner, Alaska Dept. of Environmental Conservation v. United States Environmental Protection Agency, 540 U.S. 461 (2004) (No. 02-658), 2003 WL 2010655, at *13 (internal citations and quotes omitted) (emphasis in original).

Roberts lost, but his argument is a wonderful example of the power of logos. Think of the logic: how can Alaska have acted arbitrarily and capriciously if the control technology it selected would result in lower overall emissions?

We see a different use of logos in a brief filed on behalf of Christopher Simmons, a man sentenced to death in Missouri for a murder he committed when he was 17 years old. Simmons argued that the death penalty was cruel and unusual punishment for adolescent offenders. In 1989, the Supreme Court had addressed that very issue in Stanford v. Kentucky, finding that the death penalty was not cruel and unusual punishment for those who were 16 or 17 years old when they committed the crime for which they were sentenced to death. So Simmons couldn’t rely on precedent—he was arguing for a change in the law. Eighth Amendment principles are measured by “evolving standards of decency.” What did Simmons do? He argued that the majority of states and the rest of the world recognize that the death penalty is cruel and unusual for those under age 18:

In the 15 years since [Stanford] that decision, advances in the scientific understanding of adolescent development, and the consistent movement by legislatures and juries away from imposition of death on juvenile offenders have demonstrated that capital punishment of those under 18 is inconsistent with our society's evolving standards of decency. The execution of juvenile offenders - like that of mentally retarded offenders is both disproportionate to their personal moral culpability and contrary to national and worldwide consensus.

Brief for Respondent, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1947812, at *10 (internal citations and quotes omitted).

Simmons backs up those assertions with statistics showing that since Stanford, numerous states and the federal government had disallowed the death penalty for juveniles and the execution of juvenile offenders had become increasingly rare, even if states that hadn’t outlawed the death penalty for juvenile offenders. And, perhaps even more effective, Simmons shows that executions of juveniles essentially ceased after 1989 in all except a few countries:

[Since 1990] only seven countries other than the United States are believed to have executed juvenile offenders: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Only Iran and Pakistan have executed more than one juvenile offender in that time. These sporadic and isolated executions of juvenile offenders are not countenanced even by the countries where they took place; all of them have either enacted prohibitions on the execution of juvenile offenders or publicly disavowed the practice.

Id. at *49.

Simmons’s logic is apparent—Can all other nations (except seven) be wrong?

How can you employ logos to persuade? Here are a few tips:

-Use peer pressure. If your jurisdiction hasn’t addressed an issue or if you’re arguing for a change in the law, cite all the states or circuits that have adopted the position you advocate.

-Rely on the effect of stare decisis. If a rule of law or interpretation you’re advocating is longstanding, highlight that. If a rule has been the law for 100 years, cite both old and new cases to show that multiple courts have considered the issue and decided it in a way that supports your client.

-Appeal to common sense. Just like Roberts, appeal to the common sense of the position you advocate.

-Target particular judges or justices. If you know a judge or justice’s background and leanings, use that in your favor. If you’re appealing to a textualist, make plain language/ordinary meaning arguments. Even better, cite previous orders or opinions by that judge or justice, even if those citations are only for general principles.        


Tuesday, April 1, 2014

The Fork in the Citation Road

Lady (Legal) Writer,

What’s your opinion on the in-text versus footnote citation debate? Is one way correct or is it a matter of preference?
--Footnote Fan
Dear Footnote Fan,
I’m going to give you a lawyerly response to this one: there is no "right" answer. I use in-text citation because that’s what I learned in law school. I’ve used footnote citations in the past, but I don’t like them as much. As a practitioner, I felt that footnote citations were less persuasive—I wanted the court to know exactly what authority I was citing (because my authority was good—I wasn’t stretching).

And as a law clerk, I want to immediately know the authority cited. Is it recent, binding precedent or merely old, purportedly persuasive precedent from another jurisdiction? It’s easier to hide non-binding precedent in a footnote than in the text, so I check footnote citations extra-carefully to see what might be lurking in them. But I don’t think poorly of lawyers who use footnote citations, and the citation scheme, by itself, doesn’t have any impact on the persuasive value of the brief (at least not any impact that I’m aware of).    

Of course, there is much debate on this topic. Bryan Garner strongly believes in footnotes. According to Garner, footnotes make writing clearer by allowing the writer to shorten paragraphs and vary sentence structure. And, if you believe Garner, in-text citations make reading more difficult. One of the latest Garner articles on this topic appeared in the February 2014 ABA Journal.
Others, such as Judge Posner, disagree. According to the in-text proponents, readers have to work too hard to find information in footnotes, and footnotes don’t allow for continuous reading. Posner and others also argue that lawyers are used to reading documents with in-text citations and aren’t distracted by them, as Garner claims. At least two current Supreme Court justices, Roberts and Thomas, have said they prefer in-text over footnote citations. You can find a 2001 article by Judge Posner on the issue on the American Judges Association website.
Ross Guberman, of Legal Writing Pro, suggests resolving the conflict by using in-text citation only at the end of sentences, not in the middle. I agree 100% that middle-of-the-sentence citations make reading very difficult. Consider the difference in readability between these two sentences:
In Dillard Department Stores v. Silva, 148 S.W.3d 370, 372 (Tex. 2004), the Texas Supreme Court outlined the shopkeeper’s privilege, which allows a shopkeeper to detain a suspected shoplifter in a reasonable manner for a reasonable time while the shopkeeper attempts to determine the ownership of property.
Under the shopkeeper’s privilege, a shopkeeper may detain a suspected shoplifter in a reasonable manner for a reasonable time while the shopkeeper attempts to determine the ownership of property. Dillard Dep’t Stores v. Silva, 148 S.W.3d 370, 372 (Tex. 2004).*  
All this said, the outcome of your case isn’t going to hinge on the citation scheme you use. Just be consistent throughout your document. I can only think of two times where there is a “right” way: (1) when the local rules require a certain citation scheme; and (2) when you know the judge or justices hearing your case prefer one method over the other. Otherwise, the citation scheme you choose is a matter of preference.
*You might have noticed that “department” is spelled out in the first example and abbreviated in the second example. This is a BB rule. Per BB, you cannot abbreviate case names (except for the most common abbreviations, like Co.) if the case name is in the text of the sentence.