tag:blogger.com,1999:blog-28384436082581394822024-03-05T20:34:21.288-05:00Arguendo The Art of Appellate AdvocacyUnknownnoreply@blogger.comBlogger47125tag:blogger.com,1999:blog-2838443608258139482.post-31568887500052972432013-03-04T08:00:00.000-05:002013-03-04T08:00:14.489-05:00Justice Thomas: The Beauty Lies in Simplicity<div style="text-align: justify;">
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 <a href="http://www.theatlantic.com/politics/archive/2013/02/why-clarence-thomas-uses-simple-words-in-his-opinions/273326/" target="_blank">this exchange</a> at Harvard Law School. For example: </div>
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<i>"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. </i></div>
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<i>That's beauty. That's editing. That's writing."</i></div>
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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 <a href="http://arguendoesq.blogspot.com/2012/12/more-judge-kozinski.html" target="_blank">Judge Kozinski</a>, he has a lot to share on the topic of written advocacy. </div>
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Hat to <a href="http://lawprofessors.typepad.com/legalwriting/2013/02/justice-thomas-on-concision-and-accessibility.html" target="_blank">Legal Writing Prof</a>. </div>
Unknownnoreply@blogger.com3tag:blogger.com,1999:blog-2838443608258139482.post-36517200456888066752013-02-28T10:20:00.002-05:002013-02-28T10:20:41.152-05:00Weekly Writing Tip<div class="separator" style="clear: both; text-align: center;">
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To produce a mighty book, you must choose a mighty theme. - Herman Melville</div>
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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 <i>really </i>about. Make that theme permeate your argument. Tell your client's story. </div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-57535285754145305162013-02-25T11:15:00.001-05:002013-02-25T11:15:50.572-05:00People v. Pealer: Time for a Second Look at Pretextual Stops?<div style="text-align: justify;">
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. <i>See Whren v. United States</i>, 517 U.S. 806 (1996); <i>People v. Robinson</i>, 97 N.Y.2d 341 (2001). </div>
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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. </div>
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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. </div>
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In this environment, it was only a matter of time before one police officer pushed the outer boundaries of <i>Whren</i> and <i>Robinson</i>, and a judge would do more than raise his eyebrow. In <i>People v. Pealer</i>, 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."</div>
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The legality of the stop was not at issue since the Court addressed the question of whether, under <i>Crawford v. Washington</i>, 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 <i>Whren</i> and <i>Robinson</i> because the display of the window sticker constituted only a <i>de minimis </i>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. </div>
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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 <i>Whren</i> and <i>Robinson</i> that does not matter." Judge Smith argued that the Court cannot avoid the more unpleasant effects of <i>Whren</i> and <i>Robinson </i>by characterizing certain violations of the Vehicle and Traffic Law as <i>de minimis</i>. In Judge Smith's view, <i>Whren</i> and <i>Robinson</i> 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.</div>
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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. </div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-62532367372878575642013-02-12T11:22:00.001-05:002013-02-12T11:22:15.134-05:00Specializing in Appellate Practice<div style="text-align: justify;">
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. </div>
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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.</div>
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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. </div>
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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.</div>
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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 <a href="http://en.wikipedia.org/wiki/Sunk_costs" target="_blank">sunk costs</a>. 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. </div>
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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. </div>
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These are just my two cents, and I'm curious to hear what others have to say on the issue. </div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-76400573835617866252013-02-06T10:14:00.000-05:002013-02-06T10:14:19.610-05:00E-filing: Are We There Yet?<div style="text-align: justify;">
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. </div>
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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. </div>
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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.</div>
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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). </div>
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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? </div>
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Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-24166723274101170252013-01-30T10:32:00.001-05:002013-01-30T10:32:11.817-05:00Guns and Paul Clement in the Second Circuit<div style="text-align: justify;">
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. </div>
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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 <a href="http://www.hoffmang.com/firearms/osterweil/Opening-Brief-of-Appellant_v1.pdf" target="_blank">here</a>. As usual, Clement does not hide the ball: </div>
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<i>In <u>District of Columbia v. Heller</u>, 554 U.S. 570 (2008), and <u>McDonald v. City of Chicago</u>, 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. </i></div>
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<i>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:</i></div>
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<i>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.</i></div>
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<i>2. Whether in light of the recognition in <u>Heller</u> and <u>McDonald</u> 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. </i></div>
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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. . . </div>
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Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-7127405137026831822013-01-29T12:14:00.002-05:002013-01-29T12:14:53.356-05:00A Life Well Read<div style="text-align: justify;">
I recently read a post on Lawyerist entitled <a href="http://lawyerist.com/vocabulary-is-the-least-important-part-of-good-writing/#more-58343" target="_blank">Building Your Vocabulary Can Hurt Your Writing</a>. 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. </div>
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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.</div>
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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. </div>
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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 <a href="http://www.dailywritingtips.com/repudiate-refute-and-reject/" target="_blank">this</a>.</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-80400332267111335242013-01-25T08:32:00.002-05:002013-01-25T08:32:12.895-05:00A Specialized Appellate Division?<div style="text-align: justify;">
Justice David B. Saxe of the Appellate Division, First Department, wrote an interesting <a href="http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202585314445&Improving_Appellate_Review_of_Commercial_Division_Litigation&slreturn=20130025080514" target="_blank">column</a> 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."</div>
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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." </div>
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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. </div>
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<br />Unknownnoreply@blogger.com2tag:blogger.com,1999:blog-2838443608258139482.post-10501827774095207912013-01-16T09:24:00.001-05:002013-01-16T09:24:10.995-05:00Philosophizing About Judicial Philosophy<div style="text-align: justify;">
<span style="font-family: inherit;">The New York Law Journal <a href="http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202584556135&CUNY_Laws_Rivera_Named_to_Fill_Ciparick_Seat" target="_blank">reported</a> 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:</span></div>
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<span style="background-color: white; color: #444444; line-height: 24px;"><span style="font-family: inherit;">"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."</span></span></div>
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<span style="font-family: inherit;">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,<span style="background-color: white; text-align: -webkit-center;"><span style="color: #222222;"><span style="font-size: 15px; line-height: 22px;"> what provisions of the CPLR should be interpreted broadly? Why? In a close case, would the nominee defer to </span></span><i style="color: #222222; font-size: 15px; line-height: 22px;">stare decisis</i><span style="color: #222222;"><span style="font-size: 15px; line-height: 22px;">? Or, in such a case, should the Court first seek to "do justice?"</span><span style="font-size: 15px; line-height: 22px;"> 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? </span></span><span style="color: #222222;"><span style="font-size: 15px; line-height: 22px;">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? </span></span></span></span></div>
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<span style="font-family: inherit;">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 <a href="http://www.newyorkcourtwatcher.com/2009/02/new-york-court-of-appeals-chief-judge.html" target="_blank">if history is any indication</a>, 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. </span> </div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-52179710024543382142013-01-10T11:58:00.002-05:002013-01-10T11:58:28.228-05:00Another Lesson from the Appellate Division<div style="text-align: justify;">
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. </div>
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The consequence for citing to facts outside the record are severe. Repeated and willful references to <i>de hors </i>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. </div>
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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 <a href="http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09143.htm" target="_blank">People v. Barone</a> 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. </div>
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A sampling of Justice Catterson's missives: </div>
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<i style="font-family: 'Times New Roman', Times, serif; line-height: 28px; text-indent: 38.400001525878906px;">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</i></div>
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<i style="font-family: 'Times New Roman', Times, serif; line-height: 28px; text-align: start; text-indent: 38.400001525878906px;">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].</i></div>
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<span style="font-family: 'Times New Roman', Times, serif; line-height: 28px; text-align: start; text-indent: 38.400001525878906px;">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.</span><span style="font-family: 'Times New Roman', Times, serif; line-height: 28px; text-align: start; text-indent: 38.400001525878906px;"> </span></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-64520609618148676292013-01-03T08:35:00.000-05:002013-01-03T08:35:03.658-05:00Show, Don't Tell<div style="text-align: justify;">
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." </div>
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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. </div>
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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. </div>
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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...</div>
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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. <br />
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Let that be every practitioner's New Year's Resolution. </div>
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<br />Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-17014378090812676772012-12-28T08:41:00.001-05:002012-12-28T08:41:07.446-05:00What's Your Style?<div style="text-align: justify;">
<span style="color: #444444; font-family: inherit;"><span style="background-color: white; line-height: 18px; text-align: left;">"People think that I can teach them style. What stuff it all is! Have something to say, and say it as clearly as you can. That is the only secret of style."</span><br style="background-color: white; line-height: 18px; text-align: left;" /><span style="background-color: white; line-height: 18px; text-align: left;">(Matthew Arnold)</span></span></div>
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<span style="font-family: Times, Times New Roman, serif;">Style is not something that immediately jumps to mind when discussing legal writing techniques. In a profession that celebrates terms such as<i> inter alia</i>, <i>ab initio</i>, and yes, <i>arguendo</i>, the image of a staid world where all the lawyers wear gray flannel suits to work hardly connotes style or personality.</span></div>
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<span style="font-family: Times, Times New Roman, serif;">Still, legal writers can, and should, embrace a style all their own. Read the opinions of Scalia, Posner, Kozinski, and Easterbrook. There is something that stands out about their writing. Far from the dense, turgid prose we (and they) read in law school, these writers use plain English, direct prose, a wide vocabulary, and routinely vary their sentence structure and length according to the ideas they wish to express and emphasize. I recall Judge Easterbook once saying that lawyers should want their briefs to read like an article in The Atlantic. That is, they should employ a breezy, relaxed style that gently guides the reader through the argument. </span></div>
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<span style="font-family: Times, Times New Roman, serif;">Ultimately, this is the recipe for how to clearly communicate complex ideas to a broad, general audience. This may seem more apropos to the work of journalists, but lawyers too - especially appellate lawyers - are often called upon to articulate complex arguments to a panel of judges who adjudicate disputes across a wide array of legal disciplines. To that end, lawyers must develop and refine a style, lest their work be lost and forgotten under the piles of sub-par briefs that are routinely filed in courts throughout the country. This is incredibly difficult work, requiring as it does years and years of practicing the art of written advocacy, but the process starts with a simple question: what's your style? </span></div>
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Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-29366723994880668022012-12-20T09:11:00.004-05:002012-12-20T09:11:58.951-05:00A Lesson from the Appellate Division, Second Department<div style="text-align: justify;">
....Never make an argument on appeal contrary to your client's position below. Yet, this is exactly what the prosecution did in <a href="http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08708.htm" target="_blank"><u>People v. Gutierrez-Lucero</u></a>. In this case, the defendant, who pleaded guilty to a sex offense, had been deported to Mexico before the commencement of a hearing to determine his sex offender classification level. Both defense counsel and the People agreed that the hearing could not proceed in the defendant's absence, especially since there was no indication the defendant had even been notified of the hearing. But, the court held the hearing anyway and adjudicated him a Level I sex offender. </div>
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Rather than concede error on appeal, the People insisted that the Court affirm the ruling of the court below, claiming that no prejudice inured to the defendant since the hearing court levied the least restrictive classification possible. </div>
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Big mistake. In a signed opinion, the Court called the People's position "disingenuous." Let the Court's terse opinion be a lesson to any appellate advocate who's even contemplating the idea of taking a position inimical to your client's contentions below. </div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-60168308797068888692012-12-18T08:19:00.001-05:002012-12-18T08:19:02.105-05:00More Judge Kozinski<div style="text-align: justify;">
Readers of Arguendo know well that I am a Judge Kozinski <a href="http://arguendoesq.blogspot.com/2012/10/in-praise-of-judge-kozinski.html" target="_blank">fan</a>, largely because he is one of the most engaging jurists on the federal bench (Seventh Circuit Judges Richard Posner and Frank Easterbrook and Supreme Court Justice Antonin Scalia are comparable rivals). Funny, witty, honest, outspoken, and sharp are just a few of the adjectives I would use to describe him. I especially enjoyed his insight into the opinion writing process. But enough of the Kozinski lovefest. <a href="http://vimeo.com/55556568" target="_blank">Watch this interview</a>. </div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-50357519589698117802012-12-06T14:54:00.001-05:002012-12-06T14:55:25.314-05:00Finishing Strong<div style="text-align: justify;">
Seems like someone is channeling my <a href="http://arguendoesq.blogspot.com/2012/11/paul-clement.html" target="_blank">Paul Clement</a> post in which I explained that lawyers are, first and foremost, <a href="http://blogs.utexas.edu/legalwriting/2012/12/03/lawyers-are-professional-writers/" target="_blank">professional writers</a>. Though the suggestion is hardly novel, I do appreciate that more esteemed lawyers share the sentiment. </div>
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The above post also reminds me that the corollary to opening strong is to finish strong too. Far too many lawyers finish their argument with a whimper: "In sum, the People failed to prove its case beyond a reasonable doubt, therefore, the defendant respectfully requests that the conviction be reversed and a new trial ordered." Nothing says "give me the relief I want" with a meek "respectfully request." </div>
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A somewhat recent experience illustrates the importance of finishing strong. A few years ago I was responding to a federal habeas petition in which the petitioner alleged that his trial attorney was ineffective for failing to call a false confession expert at trial. On habeas review, the petitioner was represented by a gaggle of BigLaw attorneys, all of whom collectively wrote a very persuasive brief. Indeed, it was one of the few times where I thought we would have a difficult time crafting an equally convincing argument. The circumstantial evidence supporting the conviction appeared weak, and the record lent a reasonable - if not, strong - inference that the police had procured a confession from a low intelligence individual, who was no match for the aggressive interrogation he confronted.</div>
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But, then I read the response to the petitioner's state court post conviction memo that a former colleague of mine, who had handled the case previously, drafted. I was truly impressed. Riveted would be more accurate. So convincing was his response that it led me to firmly believe that the petitioner's claim was little more than one giant smokescreen. What I particularly remember was the final paragraph, a coup de grace that left me wishing I had written it myself:</div>
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<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;"><i>"In sum, throughout the investigation of [the victim's] murder, petitioner focused solely on minimizing his culpability. In furtherance of that goal, he spun a web of
lies, and in so doing, he made a number of missteps. When confronted with those missteps, he
skillfully invented new stories designed to meet his ultimate goal of evading
responsibility, of pinning this murder on one of his two accomplices. Indeed, the defeat evidenced in petitioner’s
mannerisms during the last interview was the product not of coercion, but of
the consequences of petitioner’s own actions finally catching up with him. Petitioner’s attack against his attorney for
not procuring a false confession expert, even though “[l]ess
than a half-dozen New York State criminal defense attorneys had ever attempted
to offer a false confession expert at the time of [his] trial”, is yet another final, futile gesture to
place blame on someone other than himself.
He should not be permitted to do so here, years later after his
conviction. Since the state court’s
rejection of his claim was based on a reasonable application of Strickland, his petition for a writ of habeas corpus must be denied."</i></span></div>
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<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;"><br /></span></div>
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<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;">A great finish to an excellent argument, for it accomplished two things: it reiterated our theory of the case - trial counsel cannot be ineffective for failing to procure inadmissible evidence - and removed the dispute from its legal context and placed it in a more human, real world setting. This is the kind of conclusion that doesn't simply persuade the court to accept your argument as a legal matter, bur rather leaves no room for the court to doubt that the result you desire is the moral one. </span><span style="font-family: 'Times New Roman', serif; font-size: 12pt;"> </span></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-5983452590787295632012-12-04T12:31:00.003-05:002012-12-04T12:31:50.951-05:00False Confessions and the New York Court of Appeals<div style="text-align: justify;">
<span style="font-family: inherit;">When Chief Judge Jonathan Lippman stepped into his role, he urged his colleagues to accept more criminal cases. As an Appeals ADA, I had a vested interest on a couple of levels in Judge Lippman's announcement. It meant that I would have more opportunities to argue before the New York Court of Appeals, an exciting proposition for any young attorney. On the other hand, however, I knew full well that appellate courts of discretionary review generally do not announce they will re-examine a whole entire body of law just so they can reaffirm settled precedent. The import of the Chief's statement was clear: change was in the offing.</span></div>
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<span style="font-family: inherit;">While I don't have the statistics in front of me, they do bear out the widely held belief that the Lippmann Court has decided more criminal cases than it did under Judge Judith Kaye. Some of those cases present more arcane legal issues (such as the propriety of joinder of offenses and post-release supervision), but they do include a headliner in <a href="http://decisions.courts.state.ny.us/ad3/Decisions/2012/103008.pdf" style="font-style: italic;" target="_blank">People v. Thomas</a>, and if it takes the case, </span><i><a href="http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06968.htm" target="_blank">People v. Aveni</a>. </i>B<span style="font-family: inherit;">oth cases wrestle with the hot topic of coercive interrogations and false confessions.</span></div>
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<span style="font-family: inherit;">Anyone who has watched Law and Order, or any other crime drama for that matter, has seen the police use trickery, deception and psychological mind games to elicit a confession. In these shows, the police often misrepresent the strength of their case ("you better talk now and cut yourself a deal because we have DNA evidence and four eyewitnesses who identify you as the shooter"), or play the old good cop, bad cop routine in the hopes that the defendant will confide in the good cop. On occasion, the police will isolate the defendant emotionally ("your best friend is rolling on you as we speak. Heck, even your mother thinks you did it."). Such tactics, however, are not <i>per se</i> improper (<i>see People v. Tankleff</i>, 84 N.Y.2d 882 [1995]). The salient question is whether the subterfuge is so fundamentally unfair that it could induce a false confession or deny the defendant due process. <i>See id</i>. </span></div>
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<span style="font-family: inherit;">It should hardly surprise, therefore, that application of this broad legal standard begets different outcomes on similar facts. Hence, the divergent opinions in <i>Aveni</i> and <i>Thomas</i>. In <i>Aveni</i> - which I discussed in a <a href="http://arguendoesq.blogspot.com/2012/10/on-knifes-edge.html" target="_blank">previous post</a> - the female victim died of a drug overdose. The police suspected the victim's husband, and brought him into the station house for questioning. After reading the defendant his <i>Miranda</i> rights, the police, knowing the victim was dead, explained to the defendant that his girlfriend was at the hospital and it was imperative that the defendant tell them whether the victim ingested any drugs because "whatever medications the doctors giver her now could have an adverse effect on her medical condition." The police further explained that if the defendant refused to "tell . . . the truth" and "[the doctors] give her medication, it could be a problem." The detective's implicitly threatening the defendant with a homicide charge if he refused to admit to the killing worked: shortly thereafter, the defendant penned a written statement admitting he killed his girlfriend by injecting her with heroin. </span></div>
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<span style="font-family: inherit;">The Appellate Division, Second Department reversed, finding this tactic so unconstitutionally deceptive that it overcame the defendant's will. At this point, the Court distinguished a seemingly dispositive precedent in <i>People v. McQueen</i>, 18 N.Y.2d 337 (1966). As the Court explained:</span></div>
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<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">[In <i>McQueen,</i>] the
officers used mere deception by telling the defendant that "she might as
well admit what she had done inasmuch as otherwise the victim, who she had
not been told had died, would be likely to identify her," but did not
threaten her with repercussions if she chose to remain silent<a href="" name="1CASE"></a>.
In this case, by contrast, the detectives not only repeatedly deceived the
defendant by telling him that [defendant's girlfriend] was alive, but
implicitly threatened him with a homicide charge by telling the defendant that
the consequences of remaining silent would lead to [her] death, since the
physicians would be unable to treat her, which "could be a problem"
for him. <i>While arguably subtle</i>, the import of the detectives'
threat to the defendant was clear: his silence would lead to [his girlfriend's]
death, and then he could be charged with her homicide."</span></div>
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<div class="MsoNormal">
<span style="font-family: inherit;"><o:p></o:p></span></div>
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<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">Meanwhile, in <i>Thomas</i>, the defendant, who was charged with depraved indifference murder for the killing of his four month old son, "was interviewed by police on two separate occasions: for about two hours beginning around midnight on Sunday, September 21, 2008, and the next day, Monday, for approximately seven hours - from around 6:00 p.m. until 1:00 a.m. on Tuesday, when he was arrested." During the first interview, defendant stated that he might have accidentally bumped the infant's head, but otherwise denied any knowledge or wrongdoing in harming the boy. After expressing suicidal thoughts, the detectives took him to the local hospital's mental health unit. Upon his discharge fifteen hours later - the doctors concluded he did not present a harm to himself or others - the defendant agreed to the detective's request to answer more of their questions at the police station. Five hours later, the defendant confessed to killing the boy. </span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">The Appellate Division, Third Department found that the defendant's confession was voluntary. In particular, the Court noted that the length of the interrogation, which spanned over two days and nine hours of questioning, but which included a fifteen hour break in between, was not so long as to render the defendant's statement involuntary. The Court also found that a detective's misrepresentation - that the defendant better tell the truth about what he did to the boy so doctors could effectively treat him when, in reality, the boy was dead or likely to die - did not overcome the defendant's will because appealing to the defendant's parental concerns would make it more likely that the defendant would accurately describe how he killed the boy.</span></div>
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<span style="font-family: inherit;">Hence, <i>Aveni </i>presents the question of the extent to which police may lawfully procure a confession by threatening repercussions against the accused while <i>Thomas</i> raises the issue of how long a police may question a defendant until they overcome his will. Length of an interrogation and the environment under which it takes place, are the two main considerations courts use in assessing whether the defendant's resulting statement is the product of coercion. It could be argued that, if the Court agrees to hear <i>Aveni</i>, it will signal a desire to give a more holistic explanation for what constitutes an unlawful interrogation.</span></div>
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<span style="font-family: inherit;">Notably, <i>Aveni</i> and <i>Thomas</i> conflict with each other in a fundamental way. In <i>Aveni</i>, the Second Department held that the detectives coerced the defendant into incriminating himself by threatening him with additional charges and the likelihood of his girlfriend's death should he remain silent. Yet, in <i>Thomas</i>, the police used the very same tactic - i.e., tell us what you did to the boy so doctors could have a chance at saving his life - but the Court found the threat permissible.</span></div>
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<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">Where, then, will the New York Court of Appeals draw the line between mere deception and coercion? That line is extremely thin, and the Court, now more than ever, must carefully protect the rights of the accused while also ensuring that law enforcement is not unfairly stripped of the important tools it needs to arrest and prosecute guilty offenders. This is not an area of law that lends itself to bright line rules so it is questionable whether the Court can provide any meaningful guidance to the lower courts in how they should assess the outer boundaries of a lawful interrogation. Confusion may result; controversy almost certainly will. I look forward to seeing how these cases will shape the growing body of New York's false confession jurisprudence. </span></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-47344537932618075392012-12-03T08:59:00.000-05:002012-12-03T08:59:15.436-05:00On Forms - Revisited<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">Forms are a deadly trap for the appellate advocate. Brief-writing is bespoke work, requiring as it does hours upon hours of thinking, researching, writing and editing. So why approach the process like it is a commodity? A persuasive brief is one that is memorable, and memorable briefs - i.e., those compelling briefs that pull the court in with rapt attention - are those that don't follow the same formula and rehash the same canned arguments like so many briefs that clog the courts. </span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Appellate lawyer and blogger Raymond Ward had an insightful <a href="http://raymondpward.typepad.com/newlegalwriter/2012/11/following-forms-is-a-sad-way-to-write.html" target="_blank">post </a>on the use of forms. Aptly entitled, Following Forms is a Sad Way to Write," Ward quotes thus: </span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><span style="background-color: white; color: #333333;"><br /></span></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><span style="background-color: white; color: #333333;">The formulas are old wineskins. Your ideas are new wine. Don’t pour your new wine into old wineskins. </span></span><em style="background-color: white; color: #333333; font-family: Arial, Helvetica, sans-serif;">See</em><span style="background-color: white; color: #333333; font-family: Arial, Helvetica, sans-serif;"> Mark 2:22. </span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><span style="background-color: white; color: #333333;"><br /></span></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><span style="background-color: white; color: #333333;">True, forms are easy. All you need to do is copy and paste. Hours of work can be reduced to a couple of clicks of the mouse. The efficiency is attractive and tempting. But, at a certain point, efficiency comes at a cost - the cost of making original, thought provoking arguments. Stand athwart the forces of commoditization that have penetrated the discovery process and that threatens to corrupt the practice of law in general. In litigation, brief-writing, deposition and trial practice are the last areas in which the advocate can separate himself from the pack of lawyers that crowd the market. Creativity - not ruthless efficiency - will add value to your clients. To adopt the latter approach is self-defeating. It only cheapens your value as an attorney. </span></span></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-60199057912727997612012-11-30T09:02:00.001-05:002012-11-30T09:04:47.293-05:00Is There An App For That?<div style="text-align: justify;">
<span style="font-family: inherit;">These days people are developing apps for everything. M friends and colleagues like to show off their apps, and while there are some that incorporate some amazing technology, my immediate response is, "do I need it?" "If I were to get the app, would I even use it?"</span></div>
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<span style="font-family: inherit; text-align: justify;">I readily concede I am not an app person (I'm still learning to navigate the keypad on my iPhone), let alone a technology guru, but I just may take a peek at the new </span><a href="http://legal%20writing%20tips%2C%20legal%20writing%20checklist%20and%20additional%20resources./" style="font-family: inherit; text-align: justify;" target="_blank">legal writing app</a><span style="font-family: inherit; text-align: justify;">. Comprised of the three sections - </span><span style="background-color: white; color: #333333; font-family: inherit; line-height: 23px; text-align: justify;">Legal Writing Tips, Legal Writing Checklist and Additional Resources</span><span style="font-family: inherit; text-align: justify;"> - the app seems to be a useful guide to review before you draft the brief and again during the self-editing process.</span><br />
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<span style="font-family: inherit; text-align: justify;">Get it </span><a href="https://itunes.apple.com/us/app/iwritelegal/id561864315?mt=8" style="font-family: inherit; text-align: justify;" target="_blank">here</a><span style="font-family: inherit; text-align: justify;"> on iTunes. </span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-60837666046406718872012-11-27T17:02:00.001-05:002012-11-27T17:04:56.761-05:00Advice from Samuel Johnson<br />
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<span style="background-color: white; color: #443f38; font-family: Arial, Helvetica, sans-serif; font-style: italic; line-height: 18px;">“The greatest part of a writer’s time is spent in reading, in order to write; a man will turn over half a library to make one book.”</span><br />
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<span style="background-color: white; color: #443f38; font-family: Arial, Helvetica, sans-serif; line-height: 18px;">—Samuel Johnson</span><br />
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<span style="color: #443f38; font-family: Arial, Helvetica, sans-serif;"><span style="line-height: 18px;">Lawyers: you are what you read, and most of what you read in law school was mediocre at best. Stated less charitably, the cases you read were incomprehensible. That legal scholars still find new interpretations to </span><i style="line-height: 18px;">Erie Railroad </i><span style="line-height: 18px;">demonstrates that the seminal cases we read - the ones we read over and over in preparation for class - were far from models of persuasive writing</span><span style="line-height: 18px;">. </span></span><br />
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<span style="color: #443f38;"><span style="line-height: 18px;">A lesson: when you read, read well because to write well, you need to read well. Stack your nightstand with a few political books. Study how the author builds the argument around a theme. Or, even read a John Grisham novel. Learn how to weave a compelling narrative through the use of vivid, direct prose.</span></span></span><br />
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<span style="color: #443f38;"><span style="line-height: 18px;">Because if you don't read well, you write briefs in the mold of <i>Erie</i>. </span></span></span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-34056100047502199022012-11-21T08:43:00.001-05:002012-11-21T08:43:07.680-05:00Giving Thanks<div style="text-align: justify;">
As we near Thanksgiving Day and all the joys it brings - among them family, football and turkey - it is time that we remind ourselves of what we are thankful for as attorneys. Lawyers are a sarcastic, pessimistic bunch so I would not be surprised to hear that the knee jerk response is "not much" in light of the fragile, anemic state of the economy. True, these are challenging times.</div>
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Though we remain uncertain of our futures, we still have work to do and this work we cannot complete without the invaluable assistance of the paralegals and assistants who staff our projects. This is especially true in litigation where often the assistants and paralegals have been filing briefs and building relationships with court staff longer than we have been practicing. </div>
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I am especially reminded of the help I received when I read this <a href="http://www.volokh.com/2012/11/19/the-incomparable-emily-spadoni/" target="_blank">tribute</a> on The Volokh Conspiracy to Emily Spadoni, a long-time assistant in the United States Solicitor General's Office. Spadoni, who recently retired, was apparently one of those dedicated assistants who had amassed a deep institutional knowledge of the details surrounding Supreme Court practice, and who brought that knowledge to bear in her daily work, ultimately benefiting the august office she served. </div>
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For my part, I have lost count of the number of occasions a paralegal or assistant helped me out of a jam. So, on this Thanksgiving Day, be thankful for the paralegal or assistant who has supported you on a project and who went the extra mile to ensure you filed your brief met the court's formatting requirements. Without their help, we would have even less work than we have now. </div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-51770492076929908772012-11-20T11:18:00.002-05:002012-11-20T11:18:32.424-05:00The Creative Process<span style="background-color: white; color: #333333; font-family: Arial, Helvetica, sans-serif; line-height: 18px; text-align: justify;">"In writing, there is first a creating stage--a time you look for ideas, you explore, you cast around for what you want to say. Like the first phase of building, this creating stage is full of possibilities."</span><br />
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<span style="color: #333333; font-family: Arial, Helvetica, sans-serif; line-height: 18px;">As an appellate attorney, I enjoy each stage of the writing process, but none more so than the creating stage, i.e., the time where the lawyer has finished digesting the record and starts formulating a theory of the case. The large, yellow legal pads are removed from the desk drawer, and arguments are jotted down in no particular order. Calls are made to colleagues and mentors to gain their perspective on the issues. At some point - hopefully sooner rather than later - the argument crystallizes, and I can almost picture the paragraphs on the page. </span></div>
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<span style="color: #333333; font-family: Arial, Helvetica, sans-serif; line-height: 18px; text-align: justify;">Inexperienced writers often skip this process altogether and start writing immediately after reading the record. This is a recipe for a certain kind of writer's block. Far from lacking arguments to raise, the lawyer has too many. Overflowing with ideas, the lawyer drafts his argument without a cohesive, central narrative that ties those contentions together. As a result, the lawyer neglects to inform the reader of the "who, why, what, where and when" and comes out of the gate swinging, making all sorts of arguments that seemingly have no relation to one another. The finished product is a brief without a spine. Stated differently, the lawyer's argument is mush, and the judges and law clerks cannot summarize the claim into a simple, declarative sentence. A lawyer who drafts this sort of disorganized brief should be prepared to face a very confused panel at oral argument.</span></div>
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<span style="color: #333333; font-family: Arial, Helvetica, sans-serif; line-height: 18px; text-align: justify;">Every appellate lawyer is naturally brimming with ideas after reviewing the record. At this point, you must apply the brakes. Do just enough research to ascertain the general framework under which the court will decide the case. Ask yourself the simple question: why does my client win? Answer that question in a sentence or two. Then write the opening paragraph, and outline the argument. All those seemingly unrelated arguments will flow from your nutshell summary.</span><br />
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<span style="color: #333333; line-height: 18px;"><span style="font-family: Arial, Helvetica, sans-serif;">At oral argument, you will be glad you took this time when the panel, rather than expressing confusion over what you are trying to convey, is hammering your adversary with selected phrases from your brief. </span></span></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-37627821247829116172012-11-16T08:19:00.005-05:002012-11-16T08:19:56.465-05:00On Writing Styles<div style="text-align: justify;">
<span style="font-family: Times, Times New Roman, serif;">Over at Lawyerist, Matthew Salzwedel has an interesting <a href="http://lawyerist.com/simple-legal-writing-a-newfangled-idea-hardly/#more-51594" target="_blank">piece</a> that discusses the two main schools of writing styles, the Asiatics and Atticists. As usual, I'll let Salzwedel's article speak for itself, but I will leave you with this simple formula. For an example of the Asiatic tradition, you should dust off your old casebooks (assuming you did not resell them to the school bookstore for pennies on the dollar), and re-read every ancient torts and contracts you can. Anything pre-1970 will do. Think <i>Erie Railroad</i>. </span></div>
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<span style="font-family: Times, Times New Roman, serif;">For the Attic style, you should retrieve your high school English book, and read the </span><span style="font-family: Times, 'Times New Roman', serif;">"plain, unadorned style" of</span><span style="font-family: Times, 'Times New Roman', serif;"> Thoreau: </span></div>
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<span style="background-color: white; color: #333333; font-family: Times, 'Times New Roman', serif; line-height: 24px;">I went to the woods because I wished to live deliberately, to front only the essential facts of life, and see if I could not learn what it had to teach, and not, when I came to die, discover that I had not lived.</span><span style="font-family: Times, 'Times New Roman', serif;"> </span></div>
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<span style="font-family: Times, 'Times New Roman', serif;">Ironically, the elements of good legal writing are learned in secondary school. Go figure.</span></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-6859186097064041242012-11-14T15:46:00.000-05:002012-11-14T15:46:00.341-05:00The State of Legal Writing Education <div style="text-align: justify;">
<span style="color: #222222; font-family: Times, Times New Roman, serif;">A crucial skill for any advocate is to know the audience. The question of who are you trying to persuade is perhaps the most basic. Yet, many lawyers write a draft before asking themselves this fundamental question, assuming they even ask it all. Unfortunately, this largely results from structural flaws in a lawyer's training both during and after law school.</span></div>
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<span style="color: #222222; font-family: Times, Times New Roman, serif;">A common mistake for many lawyers is to raise every conceivable issue they spot in the record. We can thank law school for this habit. There, students are trained to an unnatural degree to issue spot. Come exam time, students secure points on an exam - and in turn earn higher grades - based on the number of issues that the student spotted in a given fact pattern. True, the student must identify the correct rule and analyze the issue to a reasonable conclusion. But, as my Property professor candidly told my section, "we professors simply speed reading through your exams and are merely looking to check off a list of issues; therefore, you should spot as many issues as you can and worry later about whether you applied the correct rule." No wonder so many attorneys equate "spaghetti on the wall briefs" as the epitome of quality analysis. </span></div>
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<span style="color: #222222; font-family: Times, Times New Roman, serif;">The training hardly improves after graduation. At a small law firm, where the vast majority of newly minted lawyers start their careers, the managing partner on a case is usually dealing with the pressures of satisfying client demands and developing new business - not to mention tending to a host of other administrative tasks - all while managing an independent caseload. Faced with these challenges, the partner will predictably lack the time necessary to mentor the young lawyer, who, in this environment may practice for a number of years before receiving substantive advice on what constitutes effective, let alone superior, advocacy. </span></div>
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<span style="color: #222222; font-family: Times, Times New Roman, serif;">For my part, I have been very fortunate to receive feedback on my writing from a number of mentors. I'll never forget when a senior attorney read my long-winded argument, and asked rhetorically, "have you seen the caseload these judges carry? Do you even know how many recommendation memos the court attorneys write - and the judges read - in a single week?" At his advice, I read as many of his briefs as I could. To this day, I don't think there is anyone better at communicating complex issues in clear, direct prose. And, because of his guidance, I routinely imagine an overworked law clerk surrounded by multiple stacks of records and briefs whenever I sit down to write a draft. Clearly, I have internalized the lessons from my mentors, but my experience is vastly different from that of my peers, many of whom are left to figure out for themselves how to best develop their writing skills. That I am the exception and not the rule is an indictment on the current model, which foists the burden of training on a class of employers entirely unsuited to the task.</span></div>
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<span style="color: #222222; font-family: Times, Times New Roman, serif;">The good news is that a few prominent law schools such as Northwestern and NYU have begun experimenting with the curriculum in a response to the challenging (or to put it more accurately and bluntly, putrid) job market. This new curriculum should include some sort of required intensive writing program in a clinical setting so the young associate is "brief ready" upon graduation. The current model, wherein even the high achieving students are rewarded with exposure to some of the most turgid, muddled writing the legal world has to offer, under prepares young lawyers for the challenges they will face in serving clients through written advocacy. Here's to hoping that the academy will respond to the demand for better legal writing. </span></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-68123338756924327112012-11-13T14:53:00.001-05:002012-11-13T14:53:09.715-05:00The Value of Oral Argument<div style="text-align: justify;">
<span style="font-family: Times, Times New Roman, serif;">An <a href="http://www.nytimes.com/2012/05/06/sunday-review/are-oral-arguments-worth-arguing-about.html?_r=0" target="_blank">eternal debate</a> among appellate advocates is whether oral argument makes a difference in the outcome of a case. Of course, that the question is even up for discussion betrays the bar's skepticism toward this integral part of the appellate process. In fact, this wary attitude is apparently held by the courts too, as evidenced by the nationwide trend in limiting the time available for oral argument and/or limiting argument to the court's discretion. In this regard, Justice Ginsburg's statement nicely summarizes the prevailing view: <span style="background-color: white; line-height: 22px; text-align: left;">“[o]f the two components of the presentation of a case, the brief is ever so much more important. It’s what we start with; it’s what we go back to."</span></span></div>
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<span style="font-family: Times, Times New Roman, serif;">Why attorneys remain skeptical of the value of oral argument is hardly a mystery. After spending numerous hours on reading the record, researching the issues, and writing and editing the brief, the attorney will usually have a firm grasp as to the strength of the case by the time the oral argument date arrives. At oral argument, the tenor of the panel's questions will usually confirm the attorney's initial belief as to whether the case is winnable. Hence, the attorney, well aware of the case's numerous weaknesses, will predictably face a barrage of hostile questioning while the attorney with a strong argument will unsurprisingly encounter light questioning, assuming the attorney receives any questioning at all.</span></div>
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<span style="font-family: Times, Times New Roman, serif;">It often seems that the decision has already been written before the case is called to the calendar. Despite the perception that oral argument is a futile exercise for everyone involved, lawyers have much to learn from the experience, regardless of the outcome. Sometimes, the panel will approach an issue from a wholly different perspective than the parties. Thus, a sharply contested point may not be all that important to the case's disposition. Conversely, an uncontested issue may be of paramount importance to the court. At oral argument, lawyers may also be surprised to find secondary and tertiary issues are at the forefront of the panel's collective mind. Or, they may be equally surprised to hear the court suggest that the mattet, which at first glance appears to turn on the facts, ultimately hinges on a novel issue of law. </span></div>
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<span style="font-family: Times, Times New Roman, serif;">Time and again I have been quite surprised by how a panel will take a completely different and unexpected approach to the issue at hand. This is what keeps me from caving to the temptation of </span><span style="font-family: Times, 'Times New Roman', serif;">throwing up my hands and exclaiming, "what's the point?" </span><span style="font-family: Times, 'Times New Roman', serif;">For the appellate advocate, the value of oral argument lies not in whether the attorney can win the case here, but whether the attorney can glean insight into the court's thinking on an issue. With every argument, the attorney gains institutional knowledge of a court's approach to a legal issue, and can bring that wisdom to bear in future cases. This is invaluable knowledge for any appellate attorney. Just ask any former law clerk.</span></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2838443608258139482.post-55216921338935085592012-11-06T15:02:00.001-05:002012-11-06T15:14:34.880-05:00On Judicial Elections<div style="text-align: justify;">
Unless you've been living under a rock for the past 18 months - during which time the presidential campaign has seemingly been running non-stop - today is Election Day. For better or worse, the country will elect a president - though I anticipate that a winner will not be called until the early morning hours, or God forbid, the outcome will remain contested in the days to come with the apparent losing candidate refusing to acknowledge defeat. Meanwhile, as the dust settles, the national conversation will pivot toward the 2016 presidential election and speculation as to the next crop of likely candidates will begin. Topics such as whether Hillary Clinton throw her hat into the ring again, or whether Marco Rubio is ready for the big stage, will be a source for endless discussion on evening cable TV talk shows. </div>
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These are all interesting issues for discussion, but the more relevant election day topic for me is one that bears directly on my practice - that being the issue of judicial elections. Stepping into the voting booth, I saw what had to be a dozen openings on the judiciary. I recognized all the names from the signs lining the major roadways in the county, but had more than a passing familiarity with only one candidate: an incumbent I have appeared before on numerous occasions throughout my career. Other than that, the rest were unknowns. </div>
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I oppose judicial elections. However reluctantly, we all accept the reality that our elected officials, whether they be congressmen, presidents, senators, assemblymen, etc.. have constituencies. The law and order Republican must pander to the police unions and the "I fight for the working class Democrat" must kowtow to the labor unions. Until someone finds a better form of organizing society other than republican democracy, lawmakers will have to assemble constituencies in order to successfully drive through their legislative agenda. Quite simply, this is the reality of (small "r") republican politics. </div>
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Why, then, should this be the case for the one branch of government that should keep a healthy distance from the often tawdry world of politics, and whose job is often to clean up the mess our elected officials leave behind? When a District Attorneys oversteps the bounds of his office in prosecuting an alleged cop killer, do we want the law and order judge, who secured a police union nomination on his path to victory, to preside over the matter? Do we want the judge whose election resulted from the support of several powerful labor unions to preside over labor disputes? I think these questions answer themselves. </div>
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I don't imagine a world where judges magically shed their biases and leave them at home. As individuals, judges bring with them their lifetime of experiences to adjudicating disputes. A former prosecutor, for example, will view criminal cases in a different light than would the veteran public defender, sometimes in ways you might not expect. But, judicial elections fail to pass what I call the gut check. Quite simply, it does not sit well when a public official whose job description is to serve as a neutral arbiter has more than a minimal amount of loyalty to a politically powerful group. </div>
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Judicial appointments, itself a political process, are not a perfect system. Even so, they are less political than the electoral model, and though I am loath to give Mayor Bloomberg credit in some areas, I must give him and his predecessor Mayor Giuliani credit for establishing a relatively political-free process in their judicial nominees. Their nominations arrived to the bench from varied backgrounds. Some were lifelong prosecutors while others were veteran public defenders, corporate attorneys, law clerks, or solo practitioners. I can only recall a few instances where the mayor elected not to reappoint a judge, and in those instances, there was a broad consensus that individual was unfit for office. </div>
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Perhaps New York City's appointment system should serve as a model for other jurisdictions. I don't pretend to know the answer. Indeed, there are many experts who have studied this issue much more closely than I have. But, I have to think there is a better way of selecting judges for office other than the current electoral model. Something for lawyers to think about on this Election Day.</div>
Unknownnoreply@blogger.com0