Justice Thomas: The Beauty Lies in Simplicity

Justice Clarence Thomas is widely known for his notable silence during oral argument, a deliberate practice borne out of the notion that he can learn more about a case by listening than through talking.  But, don't mistake for Justice Thomas' silence for indifference, for he holds some strong views on the elements of persuasive legal writing, which he reveals in this exchange at Harvard Law School.  For example: 

"What I tell my law clerks is that we write these so that they are accessible to regular people. That doesn't mean that there's no law in it. But there are simple ways to put important things in language that's accessible. As I say to them, the beauty, the genius is not to write a 5 cent idea in a ten dollar sentence. It's to put a ten dollar idea in a 5 cent sentence. 

That's beauty. That's editing. That's writing."

Suffice it to say that I echo Justice Thomas' beliefs about how there is a certain beauty in simplicity.  I only wish Justice Thomas would speak more about the subject.  Like Judge Kozinski, he has a lot to share on the topic of written advocacy.    

Hat to Legal Writing Prof.  

Weekly Writing Tip

To produce a mighty book, you must choose a mighty theme. - Herman Melville

Take it from a pro.  Theme: it's the glue that holds your arguments together. Without a theme, or an understandable theory of the case, your argument is little more than a mish mosh of statutes and cases.  Themes excite the reader, and compel the judge to believe that an injustice has been done to your client.  As I always say, a lawsuit, by definition, is a conflict, and conflict is the necessary ingredient for any drama.  The issue may be dry, but there is a story to be told.  Dig deep into the record and identify what the case is really about.  Make that theme permeate your argument.  Tell your client's story.      

People v. Pealer: Time for a Second Look at Pretextual Stops?

As any criminal defense attorney and prosecutor knows, in determining the legality of a stop, a police officer's motivation in stopping the vehicle is irrelevant.  The stop will pass muster, and the evidence yielded therefrom will not be suppressed, so long as the officer can articulate an objectively reasonable basis for stopping the vehicle.  See Whren v. United States, 517 U.S. 806 (1996); People v. Robinson, 97 N.Y.2d 341 (2001).  

From the court's standpoint, the difficulty of applying a subjective standard for assessing the legality of a vehicle stop is obvious, as it would burden the  lower courts with the task of finding, as matter of fact, the officer's real motivation in stopping the vehicle.  By contrast, an objective standard is very easy to apply.  A broken taillight, an excessively tinted window, an illegal turn, or a failure to signal, among the other countless violations that sit on the books, all constitute objective - and, hence, legitimate - reasons to stop a vehicle.  Suffice it to say that an objective standard has benefited police officers.  With little more than a hunch that a vehicle contained contraband, police officers could stop the vehicle for the most minor of infractions, and the evidence yielded from the stop could be admitted into evidence. 

Since then, however, the courts, and the greater public, have begun to scrutinize police stops from both a legal and policy matter.  The NYPD's liberal use of stop and frisks, and its aggressive enforcement of the Clean Halls program, the system by which private landlords formally grant access to the police department so they may root out suspected drug activity, have angered the public, especially those living in the poorer areas of the city.  

In this environment, it was only a matter of time before one police officer pushed the outer boundaries of Whren and Robinson, and a judge would do more than raise his eyebrow. In People v. Pealer, a case the Court of Appeals decided just last week, the police officer pulled over the defendant's vehicle after noticing a Finger Lakes Community College sticker in the rear window, a violation of Vehicle and Traffic Law 375(1)(b)(i), which provides that "[t]he use or placing of posters or stickers on windshields or rear windows of motor vehicles other than those authorized by the commissioner, is hereby prohibited."

The legality of the stop was not at issue since the Court addressed the question of whether, under Crawford v. Washington, the admission of the calibration reports, which measure the accuracy of the breathalyzer instrument, could be admitted into evidence in the without the in-court testimony of the technician who created the records.  The court held in the affirmative, but what caught my eye was Judge Pigott's dissent in which he wrote that the stop failed to pass muster under Whren and Robinson because the display of the window sticker constituted only a de minimis violation of the Vehicle and Traffic Law.  Judge Pigott pointed out that the statute is rarely, if ever, enforced, as evidenced by the untold number of vehicles that currently travel on the road each day and which display a school sticker on the read window as a show of school spirit and pride.  

This, in turn, prompted Judge Smith to write separately to explain that, while he agreed that the reason for the stop was "as transparent as the sticker," "under Whren and Robinson that does not matter." Judge Smith argued that the Court cannot avoid the more unpleasant effects of Whren and Robinson by characterizing certain violations of the Vehicle and Traffic Law as de minimis.  In Judge Smith's view, Whren and Robinson bestow on trial courts a measure of predictability, which will be lost if courts are burdened with the task of deciding whether an officer exercised good judgment in enforcing the Vehicle and Traffic Law.

Will this exchange foreshadow change in the area of pretextual stops?  Perhaps it is too early to tell.  One thing, though, is for sure: in New York, where police stops have come under greater scrutiny, the environment is ripe for the Court to reexamine its precedents on pretextual stops.  

Specializing in Appellate Practice

Next month I will be attending a round-table discussion at my local bar association where the topic will be the pros and cons of specializing in appellate practice.  I am very much looking forward to the discussion since the issue is one that has not garnered much attention among legal professionals.  Below are my general thoughts on the issue.  

I can easily rattle off the psychic benefits of appellate practice, namely the intellectual challenge, longer deadlines, and greater predictability in the day to day schedule.  We don't have to do discovery, or haggle over pennies on the dollar with opposing counsel.  And, occasionally, we get a case with a novel issue that presents us with the rare opportunity to shape the law.  In other words, the benefits are exactly what we signed up for when we decided to attend law school.

For the sole practitioner, the barriers to entry are very low.  Unless you are dealing with a sophisticated corporate clientele, you can work from home with the support of a virtual office, which, taken together with your research subscription and malpractice insurance, is your only source of overhead.  This, in turn, gives you greater flexibility in setting your fee.  Moreover, since a fixed fee is the predominant fee structure, you can free yourself from the drudgery of tracking your time in six minute increments.     

So, what are the drawbacks?  First, most clients already have an attorney at the trial level.  That attorney, if he/she does not agree to handle the appeal, may refer the matter to a specialist.  Given this reality, the appellate practitioner must spend more time than the average attorney developing relationships with trial counsel.  This is good news for those who enjoy networking, and even better news for the cost-conscious  who don't want to undertake an expensive marketing campaign.  The bad news is this: building a viable network takes time and patience, and is not a strategy that results in an immediate return on investment.

Another obvious drawback: cost.  Though appeals are not merely a second trial, they very much are in the sense that they can cost the client thousands - sometimes tens of thousands - of dollars in fees.  The problem is one of sunk costs.  The client - or the attorney working on contingency - has already expended thousands of dollars in a losing effort, and is acutely aware that the money may not be recovered.  Clients are understandably wary of shelling out even more money, just so they can lose all over again.   

There are ways to mitigate the minimize the "cons" of appellate work.  With appeals being so expensive, dispositive motion practice at the trial level becomes all the more important.  Appellate specialists can bring value by handling the motion work of busy trial attorneys.  There is also the opportunity for receiving assigned counsel work.  Though the rates are half of what would be considered the standard market rate, the work (depending on the panel) is steady, and can give you a modest source of income while you hit the pavement developing a more lucrative referral base.   

These are just my two cents, and I'm curious to hear what others have to say on the issue.     

E-filing: Are We There Yet?

The legal profession is an industry built on paperwork.  I say this in jest, but it's true.  Records and trial transcripts can span thousands of pages with the appellate court requiring the appellant to file dozens of copies. This results in appellate work becoming a very expensive enterprise.  

An example: I am handling an appeal involving the threshold issue of whether my client suffered a "serious physical injury" under New York's no-fault law.  Of all the appeals an appellate court decides in a given year, the issue involved here is fairly elementary and straightforward.  The record amounts to no more than 400 pages, and my brief will probably be no more than 30.  Yet, the Second Department requires the appellant to file 9 copies of both the record and brief to serve two copies to each adversary.  The end result is a printing job of more than 5,000 pages!  If the attorney uses an appellate printer - and many do - the client will face a minimum of $2,500 in costs (inclusive of filing fees, taxes, postage, printing, and paralegal time).  This figure is, of course, on top of the attorney's fee, which is never cheap.  And, again, this is just for a so-called "simple" appeal.  Lord help you if you wish to appeal an unfavorable verdict from a two-week jury trial.  At that point, the printing costs can easily exceed $10,000 or more.    

The Appellate Division, First Department began instituting an e-filing system a few years ago.  All the attorney needs is an Adobe Acrobat platform that can assemble a table of contents, and, of course, email.  Unfortunately, though, e-filing in the First Department is supplementary; the Court still requires the parties to file boatloads of hard copies.  Meanwhile, the Second Department has not instituted any e-filing system whatsoever, and apparently has no plans to do so.

So, why the reluctance to embrace technology?  I hear more and more about how judges and clerks are reading briefs on their computers and tablets.  I also hear about how many middle class individuals are unable to afford legal services, resulting in a justice gap whereby the poor secure pro bono or assigned counsel representation and the rich retain white shoe service.  E-filing seems like such an easy step toward reducing the costs of litigation (though I suppose some may find the high variable costs being a useful barrier to entry)?  I know that other government agencies have made the leap into the twenty first century.  Unemployment benefits can be obtained online.  The federal government fills its ranks through an online system called USA Jobs, and just recently the New York Court of Appeals has begun uploading court documents to a public database (though it too has been unwilling to shed its fondness for hard copies). 

So, I ask again: aside from the usual explanation that "government is slow to change," why the hesitation to transition exclusively to e-filing?  Thoughts?      

Guns and Paul Clement in the Second Circuit

Yesterday, the Second Circuit threw another log onto the fire in the Second Amendment debate (well, sort of, since the Court will not render a final decision until it receives from the New York Court of Appeals an answer to its certified questions pertaining to New York law).  But, here's the nutshell summary: plaintiff is a gun-owner and lives in Louisiana.  He also maintains a vacation home in Summit, New York where he lives part of the year.  Plaintiff applied for a gun license in New York.  However, under New York law, the state may only provide licenses to those domiciled in New York, and as anyone who paid attention in Civ Pro understands, an individual can only have one domicile.  Plaintiff's application was rejected for his lack of New York domicile.  He sued, claiming a Second Amendment violation.  The District Court dismissed the complaint, and plaintiff appealed.  

The decision certainly caught my eye as a political nerd, but perhaps more so as an appellate advocate nerd when I noticed that Paul Clement is representing the plaintiff on appeal.  When I first noticed the decision, I was busy writing an article, and did not know much about the case other than that former Supreme Court Justice Sandra Day O'Connor had authored the decision, and that the litigation involved something to do with the right to bear arms.  This morning, however, I retrieved Paul Clement's brief, which you may read here.  As usual, Clement does not hide the ball:  

In District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the Supreme Court of the United States made clear that the Second Amendment to the United States Constitution guarantees the fundamental right of an individual to possess a handgun in his home for the purpose of self-defense.  According to New York State, however, an individual can only have one such home.  Thus, according to New York, if you own a home in New York and live there with your family, but that home is not your primary residence, you have no right to possess a handgun for self-defense.  

Plaintiff-Appellant Alfred G. Osterweil ("Mr. Osterweil") owns a home in New York, but only lives in that home part of the year.  Because of that fact, he was denied a license to keep a handgun in his New York home.  This case requires the Court to decide:

1.  Whether the District Court erred by holding that New York's statutory scheme denying handgun permits to all individuals whose "primary residence" is in another State does not violate the fundamental Second Amendment right to keep and bear arms in defense of hearth and home.

2.  Whether in light of the recognition in Heller and McDonald of the fundamental nature of Second Amendment rights, the Equal Protection Clause permits New York to distinguish between domiciliary residents and nondomicialry residents when it comes to the right to keep and bear arms.  

Clement's statement of the issues is yet another example of highly persuasive appellate advocacy, for he leaves the Court with no room to guess the theory of his case.  By page two - that is, before the reader has even read the factual summary - the reader understands just exactly what is at stake in the matter.  Now, if only I could find the time to finish reading the brief and the actual decision. . .                                

A Life Well Read

I recently read a post on Lawyerist entitled Building Your Vocabulary Can Hurt Your Writing.  It's a quick read, but I'll summarize the basic point.  Using obscure, "highfalutin" words for the sake of showing off your vocabulary will hinder the clarity of your writing, not improve it.  Writing well is not an exercise of plucking complex words out of the dictionary or thesaurus, as if you're ordering sample platters off of a restaurant dinner menu.  

There is a reason for this, for which I find to be intuitive and obvious (though others may not think so): you are what you read.  If your spare time is spent reading People and US Weekly, then you cannot expect your writing to improve.  Read nothing and expect nothing in return.  Your writing ability may even deteriorate   On the other hand, a lifetime spent reading good prose - whether it be classic English literature, a current events periodical, or even just a newspaper editorial - is a lifetime spent listening to the music of language.

Put it this way. On the SAT, I scored much higher on the verbal section than I did on the math section.  I was never a great numbers person, but neither did I think I had the most proficient verbal skills (In fact, I still think there is always room to improve one's writing, regardless of skill level).  I did, however, spend a lot of my free time reading books with fairly refined prose.  I wasn't reading Dickens, Shakespeare, or Macaulay, but I did read my fair share of fiction and non-fiction, anything from Hemingway to an acclaimed political biography.  As a result, I gained an ear for good writing, and, in the process, internalized the techniques the great writers used, and how they would use just the right word, or vary the length of their sentences just so, to convey a specific idea.   

To my mind, there is no substitute for reading well.  Otherwise, it's garbage in and garbage out, which is why in  today's digital world you read tweets like this.

A Specialized Appellate Division?

Justice David B. Saxe of the Appellate Division, First Department, wrote an interesting column in the New York Law Journal on Wednesday.  Believing that the court is not as familiar with commercial issues as it should be, Justice Saxe suggested that the Court should consider forming specialized appellate panels, comprised of judges with intimate knowledge of commercial and business issues.  But, what caught my eye is that Justice Saxe went further to suggest that [i]n fact, perhaps we should consider convening special benches for other categories of appeals, such as complex criminal appeals.  It would be probably be a good idea to appoint a standing committee within the court to oversee and adjust the use and the functioning of such specialized benches."

As someone who frequently litigates criminal appeals, Justice Saxe's idea certainly piqued my interest, prompting me to ask: would it make a difference?  On the one hand, out of the dozens of cases I've argued, I've had a few where I think the panel missed the nuances of my argument.  Of course, I lost those cases, and I'm not the first advocate to bemoan after a loss that the judge or jury just didn't "get it."  

On the other hand, I also think that forming a special panel for complex criminal appeals would result in marginal improvement.  For the most part, I think the justices - at least in the First Department - are deeply familiar with the facts and issues, and understand how the case before them fits into the bigger picture.  I suppose the question boils down to whether a wholesale change in the composition of panels is necessary to see that small improvement.  Still, I remain agnostic on the issue, and would be interested to hear what others think.  

Philosophizing About Judicial Philosophy

The New York Law Journal reported yesterday that Governor Andrew Cuomo nominated CUNY law professor Jenny Rivera to the New York Court of Appeals seat left open by Judge Ciparick's retirement.  Much of the story revolves around how Rivera, a female Hispanic, will succeed another female Hispanic, thereby preserving the Court's current ethnic makeup.  However, for a practicing lawyer such as myself, the more interesting angle is that Rivera arrives to the Court directly from academia, a first in the Court's history.  Court observer and law professor Vincent Bonventre explains how Rivera's background may complicate her confirmation:

"This is someone who might fall into the category of critical legal theorist or critical legal feminist, somebody who looks at these issues…from a very, very different angle," Bonventre said. "There just isn't any question in my mind that if the members of the Senate Judiciary Committee read her stuff, some of them will be a little uncomfortable with it, not because there is anything 'bad' in there, but it may be a kind of scholarship they are not used to. It is the kind of legal scholarship that says in society, in the legal profession, this is what is happening to women, this is what is happening to Latinas at home, and the law is not addressing it."

No doubt, there may be some members of the senate committee who will pick apart the more controversial aspects of Rivera's academic work, and probe her to explain how these writings inform her judicial philosophy.  However, the committee should examine more broadly about what kind of jurisprudence Rivera will bring to the table.  For instance, what provisions of the CPLR should be interpreted broadly?  Why?  In a close case, would the nominee defer to stare decisis?  Or, in such a case, should the Court first seek to "do justice?" Should New York take an activist approach in addressing the problem of false confessions and misidentifications in criminal cases?  Or, are these problems better left for the Legislature and the Executive to work out?  What types of issues should the Court scrutinize more closely and why?  Is building consensus an important skill for an appellate judge?  If not, why?  Under what circumstances is it appropriate to refer to legislative history, if at all?  Does the Court have a defined role in fulfilling the Legislature's intent?  Or, should the Court be bound to a statute's text?     

Perhaps some of these questions are a bit too specific, for they ask the nominee to explain how she would rule on cases likely to come before the Court.  But, the committee should at least attempt to explore the candidate's overarching judicial philosophy (though if history is any indication, I doubt they will), not because Rivera is somehow unqualified - indeed, her academic and professional credentials indicate otherwise - but because lawyers and voters should know a nominee's judicial approach before elevating someone to such a powerful position.  Nevertheless, the cynic in me says I should not hold my breath.     

Another Lesson from the Appellate Division

From our earliest days, we are taught as appellate advocates to only cite to the record.  The appellate court is bound by the record.  Any "fact" outside the record - save for something for which the court may take judicial notice - does not exist and is entirely irrelevant to its disposition of the matter.  By citing to outside facts, you are presenting them as if they are, in fact, part of the actual record, and are thus making an affirmative misrepresentation to the court.  In plan English: you are lying.  

The consequence for citing to facts outside the record are severe.  Repeated and willful references to de hors the record material could lead to sanctions.  At a minimum, you could anger the court and prompt it to call you out in writing, as a public display of condemnation.  Either way, your previously rock solid reputation for honesty and integrity - a necessary qualification for any advocate - will suffer a huge blow, and the punishment, in whatever its form, will be preserved in the official reports for your grandchildren to read.  

Many readers may find this lesson basic, one torn from the pages of Appellate Advocacy for Dummies.  And it is. So, you can imagine my shock when I read Justice Catterson's opinion in People v. Barone in which he chastised the People - here, represented by the venerated Appeals Bureau of the New York County District Attorney's Office - for essentially making up facts out of whole cloth.  

A sampling of Justice Catterson's missives: 

In the People's brief on appeal and at oral argument, the People offered a series of wholly unsupported arguments and significant misrepresentations of the record to sidestep the absence of proof on the criminal enterprise issue

We agree with [the defendant] that it is one thing to draw inferences from the facts and another thing for the People to simply invent facts in an attempt to satisfy the [legal standard].

There is really no excuse for misrepresenting facts to the court.  Brief-writing is a labor intensive exercise that requires a great deal of time editing the written product.  Hence, the writer or editor should be able to detect an inadvertent factual misrepresentation.  But, whether the misrepresentation is negligent or willful is irrelevant, for both deeply tarnish the lawyer's judgment and integrity.        

Show, Don't Tell

Readers of this blog know I have more than a few pet peeves about the way many attorneys draft appellate briefs and respond to questions at oral argument.  High up on this list of (growing) transgressions is when lawyers argue in the factual summary of their brief.  Time and again I will read a brief containing a few lines of descriptive facts:  On July 4, 2011, plaintiff, while walking on a sidewalk owned and maintained by defendants, slipped and fell when she walked across a patch of ice," followed up by the useless legal argument,"this uncontroverted fact clearly establishes liability on the part of defendant."  

Another variation of this poor briefing habit is the use of characterizations and conclusions in the factual summary, to wit, "the prosecution's sole eyewitness did not obtain a clear view of the defendant's face when he allegedly shot and killed the victim, or "the police did not have permission to enter the defendant's apartment."  These very same arguments will again appear in the argument section.  The result is unsurprising: a repetitive brief larded up with a series of legal conclusions.    

Factual persuasion is perhaps the most difficult task to learn for the novice appellate practitioner.  I have pondered many theories for why this is the case, but I think it boils down to the fact that many newbie litigators - and people in general for that matter - are hard wired to argue and complain, from their earliest days ("Why is my curfew so early? You always treat me like a child;" or "It's not fair that Joey is starting.  All he does is suck up to the coach").  Thus, it feels more natural to tell, without actually explaining in careful detail, why the court below reached an unfair and erroneous result.  

Far more difficult, however, is the reverse: to show without telling.  Yet, this is the essence of storytelling.  As the author Anton Chekov once said, "don't tell me the moon is shining; show me the glint of light on broken glass."  Following his advice, don't tell the court that the prosecution's main eyewitness failed to get a good view of the defendant's face.  That only insults the court by robbing it of the ability to draw an inference, however inescapable that inference may be.  Show the court precisely where the eyewitness was standing and how far away he was standing from the perpetrator, the time of day, the length of time he saw the defendant, the clothing obstructing the defendant's face, the number of other visual distractions present in the area, etc...

Many appeals do not raise novel issues of law.  Whether an appeal is successful will boil down to whether the advocate has portrayed the facts in the most favorable light possible.  This being the reality, every lawyer should aim to persuade the court to reach the desired result before turning to the argument section.

Let that be every practitioner's New Year's Resolution.