Storytelling and Atkins v. Virginia

Daryl Atkins

A picture may be worth a thousand words, but a powerful story can mean the difference between life and death. In 2002, the United States Supreme Court issued an opinion in Atkins v. Virginia, 536 U.S. 304 (2002). In a 6-3 split, the Court held that executing mentally retarded offenders (the Court’s words) violates the 8th Amendment prohibition against cruel and unusual punishment.  

The storytelling techniques employed by Justices Stevens (for the majority) and Scalia (for the dissent) are wonderful examples of the power of a story. Each justice intentionally provides certain levels of detail, employs varied sentence structure, and uses choice words to highlight and deemphasize facts.

Stevens’s version of the facts:

Petitioner, Daryl Renard Atkins, was convicted of abduction, armed robbery, and capital murder, and sentenced to death. At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.

Stevens’s facts are intentionally sterile and devoid of details. Now read Scalia’s story:



A bank camera image of Jones,
Nesbitt, and Atkins
Courtesy of the Daily Press
(via the New York Times)

After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs. 

These two passages tell very different stories and evoke different emotions. Stevens, for example, crams his factual background into 2 sentences—the second of which is 61 words long. Details get lost in a long sentence, especially details at the beginning or middle of the sentence. Scalia, on the other hand, writes 4 shorter sentences that better emphasize and highlight the damning details of the crime.

Stevens provides no background about Nesbitt or Atkins, but we learn from Scalia that Nesbitt was a member of the military serving his country while Atkins had been drinking alcohol and smoking marijuana on the day the crime occurred. With Stevens’s version, the reader has no particular feelings about Atkins, while Scalia’s facts make the reader instantly dislike or distrust Atkins and feel sympathy for Nesbitt.

Stevens uses benign words, describing how Atkins robbed Nesbitt “of the money on his person” then “took” Nesbitt to the location where he was killed. Scalia, on the other hand, employs stronger language: he describes how Atkins ignored Nesbitt’s pleas, “forced” Nesbitt to withdraw money from an ATM, and “ordered” Nesbitt out of the vehicle before shooting him.

Even the language used to describe the shooting itself is carefully selected. The reader learns from Stevens that Nesbitt was shot eight times, a statement that evokes little emotion. But with Scalia, the reader feels each shot—one, two, three, four, five, six, seven, eight.

These stories come from an opinion, but the persuasive value in each is evident, and they serve as good examples of the power good storytelling. The factual background of many cases will not be as interesting—after all, parties litigate contract disputes all the time—but every factual statement can be put into a narrative that tells the story of why the client should prevail.

Avoid EWA: Emailing While Angry

Email is an amazing tool that makes communication easier and faster than ever. But it comes with risks. We've seen some unfortunate examples of emailing while distracted (EWD):

-This poor guy, who accidentally copied a justice on an email criticizing the justice's "uninformed" questions during oral argument (my prior post about him and another errant emailer is here).

-This summer associate who sent a highly embarrassing email intended for a friend to numerous partners and associates in his office
 
-This assistant DA, who was removed from a case and put on leave without pay for unintentionally sending a snarky email to numerous attorneys working on a high-profile case

And we've seen some examples of EWA:

-This exchange between a young lawyer and an attorney with whom she had accepted a job (but then changed her mind)

-This newly graduated lawyer ,who apparently lost his mind and sent an angry, abusive email to his law school's dean and faculty 
  
These are all bad, but none may be as bad as an EWA violation reported earlier this week by Above the Law. You can read the whole email (and the subsequent opinion that resulted) here, but suffice it to say that the email started, "You're an a**hole, Dan," and got worse from there.

It's fun to laugh at the misdeeds of others, but we've all sent emails to unintended recipients and we've all shot off terse, short, or unkind emails when frustrated. Hopefully these horror stories will convince you to take a few extra seconds to double-check the recipient list before you send an email and to think twice before sending angry emails that might come back to haunt you.  

Happy emailing and happy Friday!

Reading Cases

Before you can write about law, you must know what the law is.* In law school, you learn the law primarily by reading cases (i.e. appellate court opinions). Classes will be starting soon, and these tips will help new 1Ls learn to read cases.

Read twice, if possible. I know students are time-pressed, especially in the first year. When you are learning to read cases, though, you’ll probably need to read them twice to know what

you’re supposed to take away. For example, the facts of the case are almost always outlined at the beginning of the opinion, followed by the court’s holding and the reasoning (or reasoning, then holding). But without knowing the court’s reasoning, you can’t know what facts are relevant and what facts merely provide context.

Once you’ve read the entire case, go back and highlight the important facts, the procedural background, the court’s holding, and the reasoning. I advocate a multicolor highlighter system—one

color for each section. Or, if you prefer a more Spartan method, underline the most important information and makes notes in the margins next to each section. Whatever method you chose, ensure that you can quickly locate the significant parts of the opinion during class or when you’re making outlines or studying for finals.

If you know what the case is about, keep that in mind as you’re reading. Often, you’ll know what area of law the case addresses by virtue of the syllabus. If you know you’ll be discussing offers in class, focus your attention on the portions of the opinion that address the elements of an offer and the court’s reasoning as to why certain conduct did or did not constitute an offer. If you’re reading a case with headnotes, use the headnotes as clues to the most important parts of the case (but remember—headnotes are not part of the opinion).

Look carefully at the court’s reasoning. Many new law students make the mistake of reading cases to find the outcome.  Don’t get me wrong—the outcome is important—but the reasoning is more important. You don’t read cases to figure out how the court ruled in that case—you read cases to figure out how the court might rule in future cases, and the reasoning section provides the foundation for

those predictions.. The reasoning section is where the court explains why it reached the conclusion it did and may contain an explanation of the evolution of a particular rule of law, a recap of past cases that have addressed that law, and policy or other arguments that support the court's conclusion.  

 

Pay attention to dicta (singular: dictum). Dicta are statements made in a case that aren’t necessary or essential to the outcome. While dicta aren't binding, they can offer important clues about how a court might rule under different factual circumstances—clues that can help you predict the likely outcome in an exam hypothetical. "The result might be different if...," "Had....occurred/been present here...," and similar statements often signal dicta. But sometimes dicta is less apparent, and you'll have to look closely for statements in the opinion that don't apply directly to the facts at hand but that suggest a different result under different facts.     

*When cases aren’t provided by the professor in a casebook or a handout, you’ll have to perform legal research, which is beyond the scope of this post (and this writer’s expertise).

The Walken Comma

This funny has been making the rounds online, but I thought I'd share for those who haven't yet seen it.

Happy Friday!

If you're in the mood for more Christopher Walken, check out one of my favorite SNL skits, "I need more cowbell."

He's a Bad Writer (To the Tune of Paperback Writer)

LLW,

I'm a young associate and a pretty good writer. My partner, however, is a terrible writer. His briefs are stream of consciousness. His arguments often make little sense, he uses a ton of legalese, and he copies and pastes from old briefs (frequently forgetting the change the names of the parties or making completely inapplicable arguments). He's an excellent and well-respected trial lawyer but I'm embarrassed for my name to be on some of the filings. What should I do?

Junior Associate

Junior,

Bad writers usually fall into 1 of 2 categories: (1) they have no idea they are bad writers, are scatterbrained, or lack good re-writing skills and could use the help of a good associate; or (2) they think they are awesome writers and refuse to accept any criticism of their work.

I Can Make it Longer if You Like the Style

If your partner falls into the first category, I've got good news for you—you’re probably a godsend to the partner and should be able to fix most of the writing problems either with the partner's consent or without him noticing or caring.

If you write the briefs (and he later reviews them), you shouldn't have much trouble—just write the briefs the way you think they should be written. When you give each brief to him, hopefully he won't try to add loser arguments or lots of legalese.

If he does make significant changes you think are unnecessary or decrease the readability of the brief, go back to him and ask for clarification: "I'm trying to finish up this brief and have some questions. I saw you added an argument about promissory estoppel. I reviewed the complaint and noticed the plaintiff didn't file a claim for promissory estoppel, and the plaintiff's brief doesn't mention that theory. I'm just wondering if we should include any discussion of it since it doesn't appear to be an issue in this case."

The response likely will be something like this: "Are you sure? I could have sworn they included a PE claim. Will you double-check? But if they didn't include a PE claim, then, you're right, remove the PE argument."

If your partner writes the briefs (and you're responsible for finalizing them), you're in a good spot too. You have the opportunity to correct cut-and-paste problems, remove all the legalese, and clean up the organization and flow. Before removing complete arguments, though, I'd follow the suggestion above and explain to the partner why you don't think a certain argument is necessary or should be included. If the partner still wants that section in the brief, then leave the section in. At least it will be well-written, even if it's not quite on point.

You might also suggest that you and the partner jointly attend a legal writing CLE. Bryan Garner offers good legal writing CLEs in major cities and many bar associations offer at least one writing CLE each year. Most legal writing CLEs come with substantial written materials that you can refer to in future discussions with the partner, and hopefully the CLE will help you both improve your writing skills.

If You Must Return It You Can Send It Here

Navigating the waters with the second type of writer—the
bad writer who thinks he's awesome—is more difficult. Unless you brought in the case or the client, you're working for the partner's client, and the partner ultimately has the final say. You can try to make your arguments about why legalese is unnecessary and why you don't need to include a promissory estoppel argument—and you might win sometimes. But if the partner wants to file a brief with a ton of legalese and irrelevant arguments, and you try to remove them, but the partner adds them back, you're pretty much stuck.

One thing you can do, though, is ask the partner to see the final brief before it is filed—perhaps under the guise that you believe seeing a finished product will help you continue to learn what a final brief should look like. I'm not suggesting you sneak behind the partner's back and correct things he doesn't want changed, but by getting the brief last, you'll at least have the opportunity to perform a final spell-check and grammar review and correct glaring mistakes (e.g. ensuring that remnants of the brief from which yours was cut and pasted have been removed).

Other than these suggestions, I'm not sure what else you can do. You don't have much choice but to let the partner sign the pleading he wants to file and then get it filed. All you can hope is that he makes up for the poor writing at oral argument (if there is one).

All this assumes, of course, that the partner's errors are unintentional and the result of poor legal writing skills. If you truly believe the partner is intentionally misrepresenting facts or law to the courts or engaging in unethical conduct that violates his professional duties, you should think about discussing the situation with your firm's managing partner. If you're uncomfortable continuing to work for your partner, you might also see if you can be moved to a different team or work primarily for a different partner.

I hope this helps!

LLW

A Legal Writing Lesson for Jimmy Graham

Jimmy Graham recently lost out on about $5 million because of a

legal writing ambiguity in the Collective Bargaining Agreement (CBA) between the NFL and the Players Association. Graham

plays for the New Orleans Saints. Because Graham and the Saints

couldn't reach a long-term contract in the offseason, the Saints placed a franchise tag on him, obligating him to play for the team this coming season under a one-year contract.
 
The CBA outlines the parameters for the placement of a franchise tag and the formula used to determine the salary of the franchise player. The formula itself is pretty complicated and requires that the salary be calculated based on the NFL's salary cap and various prior average salaries for "players at the position...at which the Franchise Player participated in the most plays during the prior League Year."

The problem for Graham? The tight end position in the NFL has changed over the last 10-15 years, and tight ends frequently catch passes--in fact, many tight ends are used primarily as pass catchers these days. And for the upcoming NFL season, the franchise salary for traditional pass catchers (i.e. wide receivers) is about $5 million more than it is for tight ends.   
 
Graham (who has always been considered a tight end) argued that he should receive the franchise salary of a wide receiver because he "participated" more in the wide receiver position than he did in the tight end position--that is, he lined up where a wide receiver would line up more frequently than he lined up where a tight end would. 


Logo from www.nfl.com

Despite the care with which the NFL and Players Association outlined the payment parameters for franchise players, they didn't do a good job of defining "participated in" (or in selecting alternative language that would have provided more clarity). So, an arbitrator was forced to decide what "participated in" means in this context.

Without any real guidance from the CBA, the arbitrator used an apparently arbitrary factor to determine Graham's status: The arbitrator considered Graham a tight end on plays where he lined up within 4 yards of an offensive tackle.*  
 
Under that standard, the arbitrator determined that last season Graham participated as a tight end on more plays than he participated as a wide receiver. Thus, unless he and the Saints reach a long-term deal, Graham will earn about $5 million less this coming season because of the ambiguity in the phrase "participated in."

Legal writing lesson learned!

Happy Friday!
  
*This is also interesting because both Graham and the Saints objected to the arbitrator's formula. The Saints argued three factors should be used to determine whether a player is a tight end: (1) the player's size; (2) the position group with which the player meets at practice and team events; and (3) how the player is defended by other teams. See here.

Acronyms Versus Initialisms

For simplicity's sake, I call any letter abbreviation of a multi-word name an "acronym." But that's not technically correct--there are two different types of letter abbreviations: acronyms and initialisms.

To put it simply, an acronym is an abbreviation that is pronounced as a word:

-DOMA (Defense of Marriage Act)
-CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act)
-SWAT (Special Weapons and Tactics)

An initialism, on the other hand, isn't pronounced as a word. Instead, each letter is pronounced individually:

-CIA (Central Intelligence Agency)
-ACLU (American Civil Liberties Union)
-RFRA (Religious Freedom Restoration Act) 

There also are some words that appear to be a combination of an acronym and an initialism:

-GDOT (GA Department of Transportation)--pronounced Gee-dot

According to The Bluebook, entities with widely recognized initials may be abbreviated without periods (i.e. DOMA rather than D.O.M.A.) in both case names and in-text references. R. 6(b).

Preliminary Thoughts on the Hobby Lobby Briefs

Several months ago I started reading the parties' briefs in the Hobby Lobby case. Yesterday, in a 5-4 split, the Supreme Court held the contraception mandate in the Affordable Care act (commonly known as Obamacare) violates the Religious Freedom Restoration Act.

Paul Clement

Paul Clement represented Hobby Lobby (and several similarly situated parties), and the Department of Health and Human Services (HHS) was represented by Donald Verrilli and the DOJ.

The dichotomy of the briefs is an interesting study in persuasive tactics. I'm considering a more thorough article on these briefs, but in the interest of timeliness, here's some food for thought:

Introductions/Issue Framing 

From the beginning, the parties make clear the issues and topics they want the reader to focus on. HHS's brief begins: "Most Americans with private health coverage obtain it through an employer-sponsored group health plan." HHS goes on to talk about how health insurance is funded in employer-sponsored plans, the purpose of the Affordable Care Act, the use of preventative tools (including cholesterol screening and vaccinations) to improve health, and the specific preventative care recommended by medical professionals for  women. The HHS doesn't even mention the word "contraceptive" (or any synonym) until the 6th page of its brief. 

I think this is intentional--HHS doesn't want this case to be about contraceptives--it wants the case to be about the importance of preventative care. After all, if preventative care, including contraceptives, is a compelling government interest, HHS is halfway to proving the preventative care requirements (including contraceptives) pass strict scrutiny.  

Hobby Lobby, on the other, holds nothing back from the first sentence: "On the merits, this is one of the most straight-forward violations of the Religious Freedom Restoration Act this Court is likely to see. Respondents' religious beliefs prohibit them from providing health coverage for contraceptive drugs and devices that end human life after conception. " 

Hobby Lobby, of course, wants the case to be about religious freedom and contraceptive drugs--framing the issues in that way forces the Court to consider the case in terms of religious freedom and the distinctive role of contraceptives (as distinct from other types of preventative care) in health care.

Factual Background

Hobby Lobby's factual background is, in my mind, quite persuasive. Clement does a masterful job of setting the scene--he starts by describing how the Greens built Hobby Lobby from a
single store into a national chain and how it remains a closely held corporation, with Mr. Green serving as CEO, one son as President, a daughter as Vice President, and another son as Vice CEO.

Clement then outlines the ways the Greens' faith guides Hobby Lobby--trustees sign documents promising to honor God and use
the company's assets to support Christian ministries, the stores are closed on Sundays (at a cost of millions of dollars a year), the company runs full-page ads in hundreds of newspapers on Christian holidays inviting non-believers to "know Jesus," the stores play Christian music, and employees have free access to ministers and spiritual counseling. According to Clement, Hobby Lobby's self-funded health insurance plan is impacted by the Greens' religious beliefs in the same way that Hobby Lobby's other activities are.

In light of this background, Clement drives his most point home: "Hobby Lobby's religious beliefs will not allow [it] to do precisely what the contraceptive-coverage mandate demands - namely, provide in Hobby Lobby's health plan the four objectionable contraceptive methods. "

HHS's brief doesn't have a separate "Factual Background" section, but HHS does spend quite a bit of time explaining the "factual background" of the contraceptive mandate, relying heavily on the opinions of experts to justify its necessity and inclusion in the

Affordable Care Act: 
 
"Because [HHS] did not have such comprehensive guidelines for preventive services for women, HHS requested that the Institute of Medicine develop recommendations for it...To formulate recommendations, the Institute convened a group of experts, 'including specialists in disease prevention, women's health issues, adolescent health issues, and evidence-based guidelines.'...Based on the Institute's review of the evidence, it recommended a number of preventive services for women, such as screening for gestational diabetes for pregnant women, screening and counseling for domestic violence, and at least one well-woman preventive care  visit a year. The Institute also recommended access to the 'full range' of 'contraceptive methods' approved by the Food and Drug Administration (FDA), as well as sterilization procedures and patient education and counseling for all women with reproductive capacity."

Unsurprisingly, HHS has a more difficult time fashioning a good story from its facts--but it does an admirable job at making the contraceptive mandate fight about the health needs of women.

Summaries of the Argument

The parties also employ different tactics in their summaries of the argument. In its brief, HHS's summaries are numbered, making each argument appear distinct from the other--(1) Hobby Lobby isn't a person under the RFRA; (2) The Greens cannot challenge the mandate in their individual capacities; (3) the contraception mandate doesn't constitute a substantial burden; and (4) the contraception mandate is supported by a compelling government interest and is the least restrictive means to further that interest.

Hobby Lobby, on the other hand, uses narrative to summarize its arguments. Clements starts by explaining the definition of "person" under the RFRA and outlining the reasons Hobby Lobby should be considered a person. Then, Clement discusses the applicable level of scrutiny--strict scrutiny--and lists the reasons the mandate substantially burdens the rights of Hobby Lobby and the Greens.

Photo courtesy of
King James Bible Online

Finally, Clement segues into the related arguments that the mandate is not supported by compelling government interests and that the mandate is not the least restrictive means of satisfying any compelling interest (if there were one).

The result: HHS's summary feels a little sterile and disjointed, while Hobby Lobby's summary flows, and the pieces appear to fit together logically. But again, I think this is intentional. HHS wants to give the Court options (i.e. several grounds on which the Court could uphold the law) whereas Hobby Lobby wants the Court to see HHS's arguments as all interrelated (and all wrong).

HHS's brief: 2014 WL 173486 (Jan. 10, 2014)
Hobby Lobby's brief: 2014 WL 546899 (Feb 10, 2014)

The opinion can be found here.