Friday, October 30, 2015

Happy Halloween, from Justice Scalia

Justice Scalia's concurrence in Lamb's Chapel v. Center Moriches Union Free School District is one of my favorite "spooky" opinions and perfect for the Friday before Halloween:

As to the Court's invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weisman,
conspicuously avoided using the supposed "test," but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so....

The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will....Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.  

Happy Halloween!

Tuesday, October 27, 2015

A "Brief" Analysis in Hurst v. Florida

It’s Supreme Court season again! In response to positive feedback from last year’s posts on Supreme Court briefs, I’m going to be posting my thoughts on briefs filed in some of this year’s most high-profile cases.

Timothy Lee Hurst
A death penalty case, Hurst v. Florida, was argued earlier this month. Hurst was convicted of murder and sentenced to death. That sentence was overturned by the Supreme Court of Florida, and Hurst was re-sentenced, again to death. Under Florida law, the jury is charged with rendering an “advisory sentence,” but the ultimate sentencing decision is left to the judge. Hurst challenges the constitutionality of Florida’s sentencing laws.

Seth Waxman is the primary author of Hurst’s brief. Waxman was Solicitor General from 1997 to 2001, has logged more than 70 arguments before the Supreme Court, and has won previous death penalty cases before the Court. He is one of the nation’s most well-respected appellate advocates, and his brief—as expected—is stellar.

Facts that Make You Go Hmmmm

Good advocates know the power of helpful facts, even those that don’t speak directly to the issues on appeal. Through good drafting, Waxman gets the following helpful facts before the Court:

The jury voted for death by a slim 7-5 majority. The jury deliberated for less than 2 hours in deciding to recommend a death sentence.

Hurst suffered from brain damage consistent with fetal alcohol syndrome, had “below average adaptive functioning skills,” and borderline intelligence (an IQ somewhere between 69 and 78). At the time of the crime, Hurst was 19 years old but had to be “reminded to take care of himself…and to bathe and dress appropriately.” Two defense psychologists testified that Hurst was “mentally retarded,” yet the judge rejected Hurst’s claim that his mental retardation barred the imposition of death under Atkins.


Waxman’s brief contains several themes, one of which is apparent from the introduction: Florida’s death penalty sentencing scheme, whereby juries provide only an advisory role, is unconstitutional.

By my count, the term “advisory” appears nearly 20 times in the brief. Waxman hammers home his theme time and again: “Florida juries play only an advisory role. Unanimity, and the deliberation often needed to achieve it, is not necessary; only a bare majority vote is required to recommend a death sentence.”

Waxman highlights the constitutional problems with Florida’s death penalty sentencing laws in several ways:

(1) To recommend death, a jury must find at least one statutory aggravating factor. Florida presented two in Hurst’s case, but Florida law prohibits using a special verdict form that would reflect the jury’s vote on each aggravating factor. Thus, three jurors could have voted for death based on one factor and four could have voted for death based on the other factor, meaning that each aggravator could have been rejected by two-thirds of the 12 jurors.  

(2) The judge makes the ultimate sentencing decision and actually holds a separate hearing after the jury has recommended a sentence. At this hearing, the judge may consider evidence not presented to the jury and may find the existence of aggravating factors not presented to the jury. 

(3) Florida’s system goes against “centuries of practice recognizing unanimous verdicts,” “departs from the uniform position of the federal system and 49 other States in capital and non-capital cases,” and goes against the “bedrock principle that the jury system is predicated on meaningful deliberations, which a simple-majority vote cannot safeguard.”

Seth Waxman, from his days as SG
These arguments hit the law-trained reader hard. We know the importance of jury trials, of requiring a finding of guilt beyond of a reasonable doubt, and of requiring unanimity. Yet the Florida scheme seems to fly in the face of all those foundational principles—A judge decides a death sentence and can base the decision of evidence the jury never heard? Florida requires unanimity to convict a defendant of murder but not to recommend a death sentence? Florida prohibits special verdict forms that would tell a defendant which aggravating factor(s) mattered to the jury? Florida is the only state that thinks this sentencing scheme is proper?

Even to the most critical reader, Waxman’s arguments are hard to ignore.

Short Sentences

I’ve talked numerous times before about the power of short sentences. They can be used to emphasize a point, break up dense prose, and add interest. Waxman peppers his brief with these beauties:

Hildwin does not survive those later decisions.

That is the case here.

Apodaca was wrong when it was decided.

Similar logic applies here.

Next week I’ll discuss Florida’s response brief in Hurst v. Florida.

Friday, October 23, 2015

Thought For the Day

On storytelling in law:

"Plotting is important in any legal storytelling. It is crucial in legal advocacy that can best be understood as the battle of competing stories in the courtroom." But "even where the legal storyteller is an appellate judge who is purportedly retelling a story 'objectively,' merely presenting the facts in a simple linear chronology, she inevitably constructs the trajectory of a purposeful plot to reach a predetermined outcome."

--Philip N. Meyer, Storytelling for Lawyers

Happy Friday!

Tuesday, October 20, 2015

On Point: A Review of Point Taken

I’m a big fan of Ross Guberman’s work. I’ve previously reviewed
two of his books, Point Made and Deal Struck. Ross’ latest, Point Taken, is an instruction manual on opinion writing. I’m a believer that simply telling others how to be good writers isn’t effective—you have to show them through good (and bad) examples. And that’s exactly what Point Taken does.

Ross has selected some of the best snippets from the world’s best judicial opinion writers to teach and inspire readers. In Point Taken, Ross breaks opinions into three main parts—the introduction, the facts, and the legal analysis—and offers strategies for drafting each. He suggests, for example, situations where writers might want to use a “succinct and unresolved” introduction versus a “succinct and resolved” introduction. Ross offers many examples, then shows readers how to draft each type.

For fact sections, Ross helps opinion writers decide which facts—and how much detail—to provide to further the writers’ purposes. Again, he offers contrasting examples, from England’s Lord Denning, Judge Patricia Wald, Judge Posner, Judge Kozinski, and many others.

Ross then moves to the “meat” of every opinion—the analysis. How should the writer organize the analysis? How much analysis should the writer offer? How should the writer address counterauthority and counterarguments? Ross answers these questions, and more, all the while giving interesting examples of analyses from trial and appellate judges both here and abroad.   
In the second half of the book, Ross gives readers his style must-haves, such as variations in sentence length and form, parallelism, seamless transitions, and 16 key phrases to remove from writing (e.g., with respect to, with regard to, assuming arguendo). For the more ambitious writers, Ross also offers his style nice-to-haves, which include metaphors and similes, analogies, and rhetorical devices, such as word repetition (e.g., John Roberts’ “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”). Finally, Ross ends with a short chapter on dissenting opinions.

As expected, many of Ross’ tips and suggestions apply equally to brief writers and opinion writers—the value of introductions and headings, the importance of accuracy in the recitation of facts, and the need to fully analyze the authority, just to name a few. So even though Point Taken targets opinion writers, it’s good reading for all legal writers.  

As they were in Ross’ first book, Point Made, the good examples Ross offers in Point Taken are varied and entertaining (e.g., the 7th Circuit’s Pull My Finger® Fred case—yes, it’s about exactly what you think it is), making the book both enjoyable (seriously!) and informative. Point Taken is a quick read at around 300 pages and well worth your time.

You can read an excerpt from Point Taken here.

Friday, October 16, 2015

Supreme Court Fixes Two Major Issues With Its Opinions

At the start of the new Supreme Court session, the Court announced that it is fixing two major problems with prior opinions: post-release edits and link rot. 

Supreme Court pundits had complained about the Court's prior practice of revising post-release opinions without notifying the public of the changes. According to a study conducted by Harvard professor Richard J. Lazarus, these alternations were not all aesthetic. Some were substantive changes to facts and reasoning. 

Adam Liptak wrote about this issue in The New York Times in May and apparently the Court listened. Post-publication changes will now be noted in a new column on the charts of opinions and altered material will be highlighted. 

And link rot has long been a problem. A 2013 study showed that nearly half of all links in Supreme Court opinions no longer work. The Court will now preserve online content cited in its opinions and make that content available on its website. 

These changes are wonderful improvements and, I think, evidence that the Supreme Court is willing to alter its procedures to improve its opinions and its transparency. Who knows--maybe cameras in the courtroom are the next frontier! 

You can see explanations of the new procedures in the What's New section of the Court's website.

Tuesday, October 6, 2015

I Do Not Think It Means What You Think It Means

English is difficult. Many English words have nuances that escape even native English speakers. And many words sound similar but mean very different things. In my experience, these are some of the words most misused, especially by lawyers.

Appraise and Apprise. To appraise something is to assess its value. To apprise is to inform. The jeweler appraised the diamond and apprised the seller of the diamond's value.  

Disinterested and Uninterested.  Disinterested means unbiased, not lacking interest. That's uninterested. You might ask a disinterested party to mediate your case, but if you want him to mediate the case pro bono, he'd likely be uninterested in your offer. 

Hung and Hanged. Hung means suspended. Hanged is an older form of capital punishment.  

Imply and Infer. These words aren't interchangeable. They aren't antonyms in the strict sense, but they do, in a way, have opposite meanings. To imply is to suggest but not state outright. To infer is to guess based on context clues. Thus, a speaker will imply and a listener will infer based on the speaker's implication.

Ironic and Coincidental. Irony is a disconnect between actual events and what's expected. If you travel to Utah to ski, and there's no snow in Utah, but snow at your house, that's ironic. A coincidence occurs when seemingly unrelated events happen simultaneously. If you make a last-minute trip to Utah to ski and your friend also decides to travel to Utah to ski at the last minute, that's coincidence. 

Practicable and Practical. Practicable means easy to perform or put in practice. Practical means many things, including sensible and suitable. A practical solution to a problem may not always be practicable.  

Friday, October 2, 2015


I just found this cute cartoon from David Mills. So true!

Reminds me of one of my favorite scenes from Anchorman

Happy Friday!