Analyzing Petitioners' Briefs in Obergefell, the Same-Sex Marriage Case

The Supreme Court will hear oral arguments today, April 28, 2015, in Obergefell v. Hodges, the consolidated same-sex marriage case. I’ve reviewed the Petitioners’ and Respondents’ briefs in the four consolidated cases, Obergefell (Ohio), Tanco (Tennessee), DeBoer (Michigan), and Bourke (Kentucky). 

This will be the first in a four-week series on the strengths and potential weaknesses of the briefs. I’ll necessarily include information about the arguments made by each side, but these posts will focus on the strategies and techniques employed more than the substance of the arguments made.

The first two posts will be dedicated to Petitioners’ briefs and the next two to Respondents’ briefs.

By way of background, the briefs address two different but related questions: (1) whether the Constitution permits states to ban same-sex marriages (the marriage question), and (2) whether the states must recognize same-sex marriages performed in other states (the recognition question).

The Introduction

My favorite introduction comes from the DeBoer brief and my second from the Obergefell brief. Drafting a strong introduction is important; the introduction is the first impression the reader has of the party, the lawyer, the factual and legal issues, and relief sought.

The introductions in the other briefs start with short descriptions of the parties, which is ok. But  the DeBoer brief catches the reader’s attention immediately:

“The right to marry the person of one’s choice is a fundamental freedom that encompasses the right to establish a home, to bring up children and to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free persons.”

Boom. The writers leave no question of their position and make a striking impression on the reader from the first sentence.

The Obergefell brief also has a strong introduction:

Petitioners married seeking a cherished status that protects families throughout life, from cradle to grave. But Ohio refuses to respect the dignity and status conferred on petitioners’ marriages by other states. From the start of the marriage to the birth of children to the death of one spouse and beyond, Ohio erases the legal relationships of Petitioners’ families. 

 

The Roberts Court

 

Party Descriptions

We all know the issues in this matter, and those issues are legal questions, not factual ones. But the parties’ stories are still important—they remind the readers why these issues are so important to the petitioners and put faces to otherwise faceless legal questions.

Following their cradle-to-grave theme, the Obergefell brief authors tell the sad story of James Obergefell and John Arthur, who were together for more than 20 years before Arthur died of ALS in 2013. The authors describe how Obergefell “had the honor” (his words) of caring for Arthur throughout his illness and how marrying was so important to the two that friends donated money so they could travel to Maryland on a medically-equipped plane. Arthur was so sick that he could not leave the plane, so the service was performed in the cabin while the plane sat on a tarmac in Baltimore.

The DeBoer story is equally touching. In that brief, the authors describe DeBoer and her partner, Rowse, who are nurses and state-licensed foster parents who adopted three children. The authors describe the birth and adoption of one of those children as follows:

On November 9, 2009, J was born prematurely at 25 weeks. Abandoned by his mother immediately after delivery, J weighed 1 pound 9 ounces, and remained in the NICU for four  months with multiple health complications. Medical staff did not expect him to live, or to be able to walk, speak or care for himself if he did survive. When he was released from the hospital to come home with Petitioners, his condition required around-the-clock care from his parents—nurses DeBoer and Rowse—and other skilled therapists.

These touching stories remind the reader of the real people behind the litigation and, in the DeBoer case, drive home the point that these petitioners have already been deemed fit parents by the State of Michigan yet have been denied the right to adopt these children jointly because they cannot legally marry under Michigan law. And the story hints at, of course, the sacrifice made by these two women to bring up and care for children who might not otherwise have been adopted given their special needs.

Word Selection and Repetition

Petitioners in each case rely heavily on the Court’s ruling in United 

Justice Kennedy

States v. Windsor striking down the Defense of Marriage Act (DOMA). In Windsor, Justice Kennedy, writing for the majority, describes the impact of DOMA as creating “second-class” marriages, denying same-sex married couples the “dignity and status” given to them by the states that recognize their marriages, imposing a “disadvantage, a separate status, and so a stigma” on same-sex marriages, and telling the world that same-sex marriages are “less worthy” than heterosexual marriages.  

The briefs track Kennedy's language in Windsor:

-“The recognition bans brand the marriages and families of same-sex couples for second-class treatment.” (Obergefell)

-“Ohio’s recognition ban strips married same-sex spouses and their children of…the security and dignity conferred by marriage.” (Obergefell)

-Petitioners families “are deprived of the status, dignity, security, stability and myriad material and legal protections that marriage brings.” (DeBoer)

-“Marriage brings stability to families….For children of same-sex parents, allowing their parents to marry dispels the notion that their families are inferior, ‘second tier.’ Marriage brings dignity to adults and children alike.” (DeBoer)

-Tennessee’s law “communicates…that the State regards petitioners and their families as second-class citizens.” (Tanco)

-“Tennessee’s non-recognition laws require the State to deny same-sex couples and their children all the protections, benefits, obligations, security, and dignity that Tennessee law provides for all other married couples….” (Tanco)

-The Kentucky law “demeans the dignity of families….” (Bourke)

-“[T]he purpose and effect of [the marriage ban] are to brand same-sex couples and their families as less worthy than other families…[and] relegates a class of couples and their children to a second-tier status…[that] stigmatizes” them. (Bourke)

These and similar phrases appear hundreds of times throughout the four briefs, emphasizing the connection between these cases and Windsor and advocating the same result.

No Words

Another story of a litigant who tried to evade word limits has made the rounds this week on social media and is now being covered by the ABA Journal.

We've seen litigants try to place information in footnotes to get around word and page limits and modify spacing, fonts, and formatting. This litigant, however, took it to extremes by, for example, eliminating spacing in citations. One cite should have read 

Thorner v. Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)

but instead read

Thornerv.SonyComputerEntm'tAm.LLC,669F.3d1362,1365(Fed.Cir.2012)  

Had the litigant apologized and offered to file a compliant brief, the case might not have been dismissed. Instead, the litigant's proffered amended brief also was non-compliant because the litigant again attempted to skirt the word limits by replacing case citations in the brief with abbreviations, such as TOA1, that referred the reader to the citation in the Table of Authorities.

This case is particularly egregious and, in the Federal Circuit's opinion, warranted dismissal. We see litigants chastized frequently for this type of behavior (which you'd think would be enough to convince others not to try it). An outright dismissal is pretty rare though, I think, appropriate in this case.

Happy Friday!

Teeming with Themes

An important—but often overlooked part of written advocacy—is developing a theme you’ll use throughout the brief. The theme should be supported by the evidence, consistent with the legal outcome you seek, easy to understand, and memorable.

In my book with Adam Lamparello, Show, Don’t Tell: Legal Writing for the Real World, we outline a fictional case in which the defendant is alleged to have defamed a California resident by making blog posts from the defendant’s home in Pennsylvania. The defendant doesn’t want to be subject to suit in California. The defendant’s theme might look something like this: 

Forcing a litigant to travel more than 2,500 miles to defend a lawsuit—based solely on two online blog posts—is unreasonable, unfair, and unconstitutional.

That theme is supported by the evidence (the defendant’s home is more than 2,500 miles away from the court), consistent with the legal outcome sought (dismissal or transfer to a Pennsylvania court), and easy to understand and memorable.

In contrast, this theme, while supported by the evidence and consistent with the outcome sought, isn’t interesting or memorable and isn’t a persuasive theme:

The California courts lack personal jurisdiction over Simon Harrison because he lives in Pennsylvania, not California, and his statements were posted to a website from his home in Pennsylvania.

As I discussed in last week’s post, common themes from literature that translate to persuasive advocacy include:

•         Good versus evil

•         Rich versus poor

•         Powerful versus powerless/Strong versus weak

•         Power and corruption

•         Lack of fairness/justice

These themes may be applicable in any number of situations. But applicable statutes and case law may support additional themes.

Readers of this blog know I’m a big fan of Chief Justice Roberts, and I’ve talked about his work as an advocate many times before. My favorite Roberts’ brief, in Alaska v. EPA, contains a law-based theme.

To make a long story short, the Alaska litigation resulted from the state’s decision to allow a large mine to install a particular pollution control system (the BACT or Best Available Control Technology). The EPA challenged the decision, claiming that Alaska acted arbitrarily and capriciously in its determination. But the law at issue, the Clear Air Act, favored Alaska’s position:

The [Clean Air Act] by its terms thus gives the States the authority to determine BACT for a particular source, and allows the States broad discretion in making that determination. This is confirmed by the Act's legislative history: “The decision regarding the actual implementation of best available technology is a key one, and the committee places this responsibility with the State, to be determined in a case-by-case judgment. It is recognized that the phrase has broad flexibility in how it should and can be interpreted, depending on site.”

So Roberts reminded the reader throughout the brief of the “broad flexibility” given states to determine BACT on a “case-by-case” basis.

-“Because BACT is a discretionary judgment, involving the ‘case-by-case’ prioritizing and weighing of potentially competing impacts and costs, there is no single, objectively “correct” [technology] determination for any particular source.”

- “The determination of BACT is ‘strictly a State and local decision’ — “[f]lexibility and State judgment are [its] foundations.”

- “Congress intended the States to have ‘broad flexibility’ in applying the statutory factors, and ‘[t]he weight assigned to such factors is to be determined by the State.’”

-“In substituting its judgment for that of Alaska, however, the EPA plainly usurped the State's prerogative to determine BACT ‘on a case-by-case basis.’”

- “BACT is a discretionary judgment based on the case-by-case weighing of the applicable statutory factors. Accordingly, there is no single, objectively ‘correct’ BACT determination for any particular source—no ‘technology of choice’ that applies without regard to case-specific policy judgments about how to balance competing impacts and costs.”

- “By giving the States the authority to determine BACT ‘on a case-by-case basis,’ Congress ensured that the States would be able to effectively ‘manage their allowed internal growth’ under the Act.”

- “When it came to BACT, however, Congress had a different idea, and left that determination—‘on a case-by-case basis’—to the States.”

Whether your theme is fact-based or law-based, remember that you shouldn’t try to shoehorn the facts or law into theme they aren’t consistent with. And don’t beat your reader over the head with the theme: Do as Roberts does and weave the theme throughout the brief, like an undercurrent that is always present but not always visible.

Logical Punctuation?

The Twitter world was ablaze yesterday over this Slate article by Ben Yagoda on the shift in mainstream America toward "logical" punctuation. Yagoda's article specifically addresses the American English tradition* of placing punctuation inside quotation marks, though I think the term "logical punctuation" can also include other punctuation, such as the use of commas, dashes, and semi-colons.

I, like Judge Dillard of the Georgia Court of Appeals (@judgedillard), am opposed to logical punctuation. But as my Twitter friend Ellie Margolis (@elliemargolis) pointed out, logical punctuation can be fine if used intentionally. The problem of course, as Yagoda recognizes, is that most writers don't consciously use logical punctuation; their punctuation results from a lack an understanding of American English punctuation rules.

What do you think? With the movement toward less formalism in legal writing, is logical punctuation the next big thing? 

Happy Friday!  

*Writers of British English place punctuation outside quotation marks.

Writing Tools for Lawyers Part III

*This is the final part of a multi-post series based on Writing Tools: 50 Essential Strategies for Every Writer by Roy Peter Clark

Tool 38 Prefer Archetypes to Stereotypes

With Tool 38, Clark recognizes the stock structures or narrative themes present in writing. Clark urges writers to employ themes and symbols subtly—In Clark’s words, use symbols not cymbals to advance the story. 

Legal writers are wise to employ themes in their briefs. Common themes include:

-good versus evil (or big, powerful versus small, weak)

-government versus the little man
-heroism
-overcoming obstacles
-rich versus poor
-patriotism
-war and peace
-purposes of punishment  

Good writers don’t beat the reader over the head with the theme, though. Instead, they allow the theme to run as an undercurrent throughout the argument.

 

In next week’s post, I’ll tackle the topic of developing and employing themes in legal writing.   

Tool 43 Read for Both Form and Content

Clark urges writers to look for “the machinery beneath the text;” that is, to “see how it works.” Good writers better their craft by learning from other accomplished writers.

Legal writers should do the same and read briefs by good writers. Briefs written by John Roberts and Elena Kagan (when they were practitioners), Paul Clement, Seth Waxman, and David Boies are good places to start. Read briefs closely and critically, identifying the techniques used. 

Ross Guberman’s Point Made and Noah Messing’s The Art of Advocacy include hundreds of examples of good briefs that employ various legal writing strategies. Pick a strategy you can emulate and make a point to do so in your next brief. Once you become familiar and comfortable with that strategy, employ another.   

Tool 45 Break Long Projects Into Parts

“Tiny drops of writing become puddles that become rivulets that become streams that become deep ponds.” So says Clark, in reminding writers to make writing a habit. 

A large project (an appellate brief, for example) can seem overwhelming. And what happens when a project feels overwhelming? We procrastinate, choosing to work on easier tasks until the last possible minute.

Bad briefs often result from poor time management. I know from my own experience that too many attorneys don’t even think about—much less begin—writing a brief until a week (or less) before it is due. The near-certain result is a brief that could have been good if the writer had taken time to organize the arguments, polish the writing, and properly proofread.

Follow Clark’s suggestion and break large writing projects into parts, set a schedule, and stick to it. And leave plenty of time to pull those parts together to create a cohesive final product.

You don’t even have to devote an entire day to writing—you can break your schedule down into hours if that works better for you. And if you feel you need breaks from writing (which I recommend), you can schedule “off days.”

Date	Task
5/1—3 hours	Confirm and draft ancillary sections required by Court of Appeals rules
5/2—5 hours	Draft Statement of the Case
5/3—4 hours	Draft Appeal Issue #1
5/4—3 hours	Draft Appeal Issue #2
5/5—3 hours	Draft Appeal Issue #3
5/8—2 hours	Draft Summary of the Argument
5/9—2 hours	Draft Table of Contents and Table of Authorities
5/10	Off
5/11—5 hours	Proofread and polish
5/12—2 hours	Coworker review
5/13—2 hours	Finalize

 

Oral Argument Strategy?

Many first-year law students are preparing for oral arguments this week and next. If you're one of them, here's hoping you prepare hard and employ a better strategy!

 
Happy Friday!

More Writing Tools for Lawyers

*This is the second in a multi-post series based on Writing Tools: 50 Essential Strategies for Every Writer by Roy Peter Clark

Tool 26: Use Dialogue as a Form of Action

In Tool 26, Clark urges writers to use speech both to advance the story and to give the reader “airy white space that ventilates dialogue.” According to Clark, though, when reporting information—which lawyers often do—the writer should intermix dialogue and other storytelling techniques to ensure quoted material comes with context.

I’ve talked about this before, but choice quotes from documents or deposition testimony reveal far more than summaries of the same information. And deposition testimony offers the same “airy white space” that visually gives the reader a break.

Tool 27: Reveal Traits of Character

 

I got ahead of myself last week in talking about Tool 5. I urged writers to use facts to show, rather than tell the reader the story. Clark covers this tip in Tool 27, when he encourages writers to avoid “vague character adjectives,” such as “superstitious” or “quirky,” and instead use facts to allow the reader to draw the conclusion.

 

This recent article outlines how attorneys for the federal government in a high-profile criminal case are using emails to show that RBS employees made false statements about mortgage securities purchased by Fannie Mae and Freddie Mac.

 

Rather than simply tell the judge that RBS believed the securities were bad, the attorneys have used specific language from numerous emails in which RBS employees called the securities “lemons,” “junk,” and “pigs.” Attorneys presented one former RBS vice president with an email in which he called the securities “crap.”

 

When asked if the word “crap” is ever used in a positive sense, the former employee responded: “Nothing comes to mind.”

 

That's powerful stuff.

Tool 32: Place Gold Coins Along the Path

 

This is an interesting tool used most effectively, I believe, by suspense writers. Think of a novel or story with a plot twist—The Postman Always Rings Twice, Gone Girl, We Need to Talk About Kevin, The Secret Life of Walter Mitty. Once you learn the ending, you see the “gold coins” the writer dropped along the way foreshadowing the twist.

 

Clark has this to say about the importance of “gold coins”:

 

Think of a gold coin as any bit that rewards the reader. A good start is its own reward….But what about the territory between the beginning and the end? With no gold coins for motivation, the reader may drift out of the forest….’ The easiest thing for a reader to do,’ argued famed editor Barney Kilgore, ‘is to quit reading.’

 

That couldn’t be more true with legal briefs. While you probably can’t weave a plot twist in to your legal brief, you can drop gold coins along the way to ensure your brief remains as interesting as possible throughout. Clark suggests that a gold coin can be an anecdote, a “startling” fact, a “telling” quote, or other interesting information. While you’ll want to start with your strongest argument and evidence, work hard to keep the middle of you brief interesting as well by employing Clark’s other tools.  

Bill and Ted Would Approve

Justice Kagan's recent opinion in the Omnicare case has garnered attention for her use of "way" as an adverb: She concludes Omnicare "way overstates" the breadth of a law. Justice Kagan's known for her way cool writing style, so I’m not surprised to see her drop interesting colloquial phrases into her opinions. In fact, I hope she’ll continue to do so—she provides great fodder for me and others interested in judicial opinion writing.

I think 80s time travelers Bill and Ted would totally have a cow over the bodacious Justice Kagan’s gnarly opinion.