The Adverse Amicus: Does Court Acceptance of Factual Assertions Require a More Active Response?

The September 1 issue of the New York Times reports on an upcoming article on the role of amicus curiae briefs in shaping Supreme Court opinions. The article, authored by William and Mary professor, Allison Orr Larsen, addresses the tendency of Supreme Court Justices to cite factual assertions made by amici. These assertions may inject matters into the Court’s decision making process that were not placed before the trial court and may not have received the vetting that a factual assertion by a party has received. While various Justices have warned against resorting to such off-the-record facts, Professor Larsen has turned up a number of instances where Supreme Court opinions have cited amicus briefs for various factual matters—including instances where the briefs themselves provide no further authority for backing up the claim.

The acceptance of and reliance upon friend-of-the-court briefs varies greatly among the appellate courts. Texas, for example, takes a rather welcoming attitude towards such briefs. In jurisdictions where a robust amicus practice is allowed, Professor Larsen’s work suggests that litigants should take claims made in amicus briefs seriously. Where a claim lacks a basis in the record it may be necessary to move the court to strike that portion of the brief and to remind the court of its responsibility to judge the case based upon the record before it, not the assertions of an interested “friend.”

Reading Law: An Indispensable Treatise

In 2012, Supreme Court Justice Antonin Scalia and legal writing expert, Bryan Garner, published Reading Law: The Interpretation of Legal Texts. According to its authors, the purpose of the book is two fold: (1) to promote a judicial philosophy that finds the content of the law in the text of the Constitution, statutes, and contracts rather than the judge’s conclusions regarding what the authors of the text intended, or should have intended; and (2) to illuminate the governing principles (canons) that guide the interpretations of legal texts.

The book’s vigorous defense of textualism has predictably drawn the most attention and criticism. But it is Scalia and Garner’s lucid explanation of 57 separate canons of textual interpretation that is likely to prove most influential in the long run. Each canon is addressed in a mini essay of around a half-dozen pages with numerous examples of how the canon has been applied or misapplied by courts.

This user-friendly tome provides precisely the kind of tool that busy courts can use to resolve difficult questions of statutory construction. And they have been quick to use it. A Westlaw search reveals that courts have cited Reading Law over 60 times in the year since its publication. All indications are that this is going to be one of the most influential legal treatises ever written. Regardless of one’s position with regard to the rigorous textualism advocated by the authors, appellate practitioners cannot afford to be without a copy.

Should Appellate Courts Be Doing Their Own Factual Research?

Like many lawyers – and most appellate specialists – I’m closely following the waning days of the United States Supreme Court’s term. To those of us who spend a lot of time reading recent opinions of the Court, it’s been clear for a number of years that many Justices are becoming increasingly comfortable doing their own factual research, outside the record and the briefs. The Justices aren’t finding their own adjudicative facts – facts about the underlying dispute or the trial – they’re presenting new legislative facts – the type of more general statements about the world outside the courtroom that Congress considers every day.

Thanks to a fascinating new study from Professor Allison Orr Larsen of William & Mary, we now have a detailed analysis of the phenomenon: “Confronting Supreme Court Fact Finding”. The entire article is well worth a read to anyone interested in the Court.

Professor Larsen’s research confirms the anecdotal impression that many court watchers have: independent factual research is commonplace at the Court. Of the 120 most important decisions from the Court between 2000 and 2010 – as measured by two indexes used by political scientists – 56 percent contained at least one factual assertion supported by a source outside the record and never mentioned in any of the briefs. Forty-seven percent of the cases which involve at least one assertion of legislative fact contain four or more extra-record factual sources.

Professor Larsen points out that cases like Brown v. Entertainment Merchants Association, which involved a law restricting the sale of violent video games to minors, sparked considerable independent research from many members of the Court – Justice Breyer compiled an appendix of academic journals; Justice Alito cited to a number of websites; and Justice Thomas cited 59 sources for the proposition that the founding generation believed that parents had complete authority over their children, 57 of them nowhere to be found in the record or briefs. She discusses many other examples as well, including Sykes v. United States, which involved the question of whether fleeing from the police in a car was a violent felony, and Graham v. Florida, which involved the question of whether the 8th Amendment permitted sentencing juveniles who committed non-homicide offenses to life without parole. Other scholars have pointed out similar examples in lower appellate courts [pdf].

But the core question, of course, is should anyone object? Professor Larsen suggests several reasons why the phenomenon is disturbing. First, the risk of simple mistake. As many courts have observed, for the most part, anyone can post anything on the internet for any reason. Second, there is a risk of systemic bias. Several search engines claim that the results they present to a particular user are influenced by the user’s earlier search history – in other words, the search engines present you with what they think you want to see. So there’s a risk that your independent research will merely reinforce the conclusions you had already drawn.

Professor Larsen’s third reason – and to me, the most compelling reason by far – is fairness and legitimacy. Technical non-legal issues arise all the time in my principal field of antitrust law, and scholars have investigated how generalist judges fare handling those issues.  As an attorney, I want an opportunity to offer the court my analysis of any non-legal materials it is contemplating relying on.

Even more important, however, is the interests of our clients. Many appellate judges have remarked that the primary function of oral argument, in their view, is to support the legitimacy of the process. Appellate decision-making can seem like a largely opaque process to those not accustomed to it. But through oral argument, a client can feel, win or lose, as if his or her advocate had an opportunity to face the decision-makers and make the case as best he or she can. This institutional value is seriously diminished if, when the attorney and client receive the court’s opinion, the result has turned on a finding of legislative fact and extra-record research which no one ever addressed while the case was at issue.

So what to do? Professor Larsen notes suggestions offered by various judges and commentators, including training judges in empirical analysis, making it easier for judges to use their own experts, and even creating a judicial research service. But such steps do little or nothing to address the serious issue of fairness and legitimacy; indeed, they arguably make the problem worse.

California addressed this problem nearly a generation ago, and its solution points out a useful way forward. According to California Government Code § 68081, before any appellate court decides a case “based upon an issue which was not proposed or briefed by any party to the proceeding,” the court must grant supplemental briefing. If the court does not do so, the court must grant rehearing on the timely petition of any party. Fairness and legitimacy concerns would be substantially eased if California’s solution was broadened and adopted elsewhere. Whether by court rule or statute, courts should commit to permitting the parties and their lawyers a fair opportunity to comment, either through supplemental briefing or rehearing, before a case is decided based upon a finding of legislative fact supported only by extra-record sources.

But now it’s your turn, readers. Has the trend towards independent research on legislative facts spread to state and intermediate Federal appellate courts? If so, is it a matter that should be addressed by rules or institutional reform? And what kinds of solutions would you suggest?

Why Judicial Vacancies Matter - Part I of a Series

As Chief Justice John Roberts observed last year [pdf], judicial nominations have become something of a game for the political branches of the Federal government. Slow-walking judicial nominations – or even bringing the processing of new nominees to a complete halt – is either the last bastion of freedom or an assault on the Constitution. Both parties are comfortable making either argument, depending on which holds the political balance of power at any given moment. The voters don’t care, and nobody’s hurt.

Except somebody is hurt. Don’t believe me? There are currently 874 authorized Federal judgeships [pdf]. Eighty-two are currently vacant.  Sixteen more judgeships will become vacant within the next nine months.   That vacancy rate has been steady for many months, and with the general election campaign in full swing, prospects seem dim for making any significant progress in 2012.

Now look around your firm or legal department. Imagine one out of every ten senior attorney positions was vacant. Think that might slow down the work?

Judicial vacancies reduce public confidence in the judicial system. Faced with the prospect of putting their lives on hold for a year or more while they wait for committee votes and an up-or-down vote in the Senate, highly qualified attorneys are opting not to seek judicial appointments. Since criminal cases take precedence on the docket, civil litigants are waiting longer than ever for trial. Meritorious claims wait longer for compensation. Defendants facing meritless claims wait longer to remove the cloud that an unresolved lawsuit puts on a business. Since trial is further off, discovery stretches on and on, increasing the costs of litigation. As ABA President William T. Robinson III wrote, “Businesses face uncertainty and costly holdups, preventing them from investing and creating jobs.”

To be clear, I’m not advocating the confirmation of any particular nominee, or even the President’s nominees in general, as opposed to one or more nominees which the Senate might prefer. Rather, my point is the same one argued by ABA President Robinson, The New York Times,  and other newspapers around the country, see here, and here , and here, and here: the White House and the Senate should take action to fill the vacant judgeships with qualified candidates on an emergency basis.

Because an emergency is exactly what many districts around the country are facing. The Administrative Office of the United States Courts defines a district court as a “judicial emergency” when (1) the court has two or more judgeships and only one active judge; (2) the court’s “weighted filings” are more than 600 per judgeship; or (3) “weighted filings” are between 430 and 600, and the vacancy is more than 18 months old. A vacancy on a court of appeals is an “emergency” if: (1) the court’s “adjusted filings” per three-judge panel exceed 700; or (2) “adjusted filings” are between 500 and 700 per panel, and the vacancy is more than 18 months old. There are currently thirty-two judicial emergencies in the district courts and seven in the Circuits.  According to the Center for American Progress, more than 160 million Americans live in a jurisdiction declared a judicial emergency.

The four longest-standing judicial emergencies in the district courts are:

  • The Eastern District of North Carolina: This court currently carries 630 weighted filings per judgeship. Between 2010 and 2011, new filings increased 18.8%, and pending filings were up 10%. Judge Malcolm J. Howard took Senior status on December 31, 2005. There is no nominee from the White House.
  • The District of Maryland: This court carries 495 weighted filings per judgeship. Between 2010 and 2011, pending filings were down 1.8%. Judge Peter J. Messitte took Senior status on September 1, 2008. The President nominated Judge George Levi Russell III, an Associate Judge on the Circuit Court of Maryland for Baltimore City, to succeed Judge Messitte on November 10, 2011. Judge Russell is awaiting a confirmation vote by the full Senate.
  • The Western District of Texas: One of five pending judicial emergencies in the Texas District Courts, this court carries 751 weighted filings per judgeship.  Between 2010 and 2011, pending filings increased 5.7%. Judge W. Royal Furgeson Jr. took Senior status on November 30, 2008. There is no nominee from the White House.
  • The Western District of Wisconsin: This court carries 600 weighted filings per judgeship. Between 2010 and 2011, pending filings were up 45.7%. Judge John C. Shabaz took Senior status on January 20, 2009. There is no nominee from the White House.

Thomas & Lincoln on Appellate Practice: Your Credibility is Everything (The Bryan Garner Interviews IV)

"You don't want to lose credibility," Justice Thomas told Bryan Garner during their 2007 interview [pdf]. "That is the one thing you bring with you. And if you lose it, it's hard to get it back."

A lawyer's credibility is his or her stock in trade, and that's especially true in the appellate courts. Appellate judges rely on the lawyers before them to give an honest account of the facts below, and enter into an open dialogue about the application of the law to those facts. As Justice Kennedy said, "I've learned that the judges really want your help."

Few lawyers would question the proposition that they have a duty to be fair and honest about the facts and the record. Justice Ginsburg points that out in her interview with Garner: "if a brief-writer is going to slant something or miscite an authority, if the judge spots that one time, the brief will be distrusted - the rest of it." Nevertheless, it happens, at least in the intermediate appellate courts. After twenty-five years practicing in the appellate courts, I've certainly seen record cites that don't support the accompanying factual assertion. And once in a great while you see brief-writers whose discussion of a few key authorities stretches the boundaries a little too far.

The justices remind us to be scrupulous about the little things. The first and last thing I do with every brief is to review the applicable court rules - a habit I learned with my first appellate brief, when a senior partner reminded us that we would not under any circumstances be getting any non-compliance calls from the court clerk. Proofread carefully and repeatedly -- Justice Stevens observes that he "almost never" reads a brief with no typographical errors, but Justice Scalia told Garner that typographical errors undermine your credibility: "It just shows you're not careful." Particularly with courts of discretionary jurisdiction, Justices Thomas and Kennedy both note that some attorneys insist that the cases stand for more than they really do. "[W]e know that's not true," Justice Thomas said. "That's not advocacy; that's just being dishonest."

But protecting your credibility goes deeper than that. As Justice Thomas says: "I think when you give ground, you gain credibility. When you hold ground that you don't deserve, you do not gain credibility; you lose credibility." Bringing arguments with no chance of success is not a cost-free exercise in the appellate courts. Filing a petition for review at your state Supreme Court claiming that half a dozen issues are worthy of review -- or devoting an appellate brief to what's really a jury argument -- merely tells the court that you don't understand its mission.

Justice Thomas' advice reminded me of a story about Abraham Lincoln. Lincoln's friend Leonard Swett tried dozens of cases while riding circuit with Lincoln, both as his co-counsel and his opponent. After Lincoln's assassination, Swett told Lincoln's biographer (and former law partner) William Herndon:

As he entered the trial, where most lawyers would object, he would say he reckoned it would be fair to let this in, or that . . . When the whole thing was unraveled, the adversary would begin to see that what he was so blandly giving away was simply what he couldn't get and keep. By giving away six points and carrying the seventh he carried his case, and the whole case hanging on the seventh, he traded away everything which would give him the least aid in carrying that.

Justice Thomas and President Lincoln have important advice for our practices. Most appellate judges glance at the counsel signature block when they pick up a brief. Strive to give them a sigh of relief when they see your name on the brief, because they know your record cites will say what you claim, your cases are correctly cited, your brief is complete and intellectually honest; in short, that you've given them the help they want.

Learning to Love Oral Argument (and Persuade the Court While You're At It) -- The Bryan Garner Interviews III

My favorite part of my job is oral argument. A well-prepared oral argument with a hot bench is everything that draws a lawyer into appellate practice -- a fast-paced but thoughtful give-and-take about what the law is, and where it should go. As Justice Scalia told Bryan Garner, “I think good counsel welcomes, welcomes questions.”

Still, nothing in appellate practice has more capacity to keep lawyers pacing the floor at night.

As you might expect, Bryan Garner's Supreme Court interviews contain detailed advice for preparing for oral argument, enjoying the process, and even persuading the court to your client's point of view while you're at it.

One of the most difficult skills to learn in appellate argument is how to stay on message despite a hot court. Inexperienced advocates tend to become wedded to a speech, or at least an inflexible outline. When the questions start flying, they can’t adapt their presentation, and sometimes they wind up committing the cardinal sin of responding to a question with "I'll get to that in a moment." You’re there to answer the court’s questions, nearly to the exclusion of all else. Evade, stall or equivocate, and you try the court’s patience and risk your credibility. Answer the question. Immediately.

Chief Justice Roberts offers a great suggestion for mastering the skill of adjusting your argument on the fly to fit the flow of questioning. He points out that every argument breaks down to just a few points – call them A-D. Put each point on an index card. During your practice sessions, shuffle the cards as you're introducing your argument, then look down and take your points in the order you see -- if the first card says point "C," then begin there. That way, if a judge interrupts in the first two minutes and wants to move straight to your final point, your presentation will flow smoothly from there through your other points.

As Jay O'Keeffe argued on his appellate blog De Novo last year, moot court practice sessions are an absolutely essential part of preparing for most cases. Today, more cases than ever are resolved on the briefs; oral argument doesn't change the result. But you can never predict whether your case will be one of the exceptions, so you have to be ready. Know the record and know the cases: "as a lawyer," the Chief Justice told Garner, "you've got to be prepared to answer a thousand questions. You might get eighty, you might get a hundred, but you've got to be prepared to answer more than a thousand." Although predicting the hard questions the court might ask is an indispensable skill for an appellate lawyer, you'll need help from your colleagues. The Chief Justice recalled:

I would do countless moot courts early on. For a Supreme Court case, certainly five, maybe as many as ten. I'd do them over and over again, and it paid off enormously in terms of generating familiarity with the types of questions people would ask and also developing a comfort level with answering.

The Chief Justice reminds us to resist the urge to staff your moot court with people who might be expected to be sympathetic to your client’s position. If your client is a criminal defendant, find three former prosecutors for your sessions. If you're representing a corporate defendant, find a former plaintiff's lawyer. Answering the easy questions doesn't do you any good; you want the hostile ones. Strive to walk out of your argument thinking it was easier than your moot courts.

I'll conclude with my own tip: listen and learn. Become a fan of the great oral advocates. Check out the oral argument audios at the Oyez Project. Pick up a few of Peter Irons' May It Please the Court book-and-audio collections and listen during your commute (just hope nobody asks what's on your iPod playlist).

Join us back here tomorrow for the conclusion of our four-part series on Bryan Garner's SCOTUS interviews in LawProse.

Appellate Brief-Writing 101: "Every Lawsuit is a Story" (The Bryan Garner Interviews II)

"God created man because he loved to hear stories," goes an Ethiopian proverb.

You might think that narrative has little or nothing to do with writing a good brief. But as Professor James Boyd White reminds us, "The law always begins in a story . . . It ends in a story, too." Chief Justice Roberts tells Bryan Garner in the LawProse interviews that story-telling is central to writing a compelling statement of facts:

It's got to be a good story. Every lawsuit is a story . . . I don't care if it's about a dry contract interpretation; you've got two people who want to accomplish something, and they're coming together -- that's a story. And you've got to tell a good story . . . you want it to be a little bit of a page-turner, to have some sense of drama, some building up to the legal arguments.

People are natural story-tellers; stories are an innate way for us to order and interpret all of human experience. As Barbara Tuchman wrote, "narrative is the life-blood of history." Telling a story in your brief that fits an established paradigm gives the result you want an internal consistency -- any necessary inferences you're asking the judge to make will seem reasonable. If you frame your story well, your desired result will have the virtues of fidelity -- stories the decision maker knows to be true -- and ideals -- consistency with what the decision maker wants to be true. Tapping into stock stories and myths, like Joseph Campbell's archetypal stories, is a powerful tool of persuasion.

The elements of story-telling are directly applicable to our craft, as several commentators have shown in recent years, see here [pdf] and here [pdf] and here. [pdf]. Every lawsuit occurs in a setting, of course -- the factual background and the governing law. As in every good story, conflict takes center stage, and here, the lawyer must make a decision -- is the story one of person against person? Against self? Against nature? Against society? The theme of a persuasive brief should define the central conflict in terms of the characterization, casting the story in a light the decision maker can identify with. And finally, all cases have a plot: set-up, complication, and finally, resolution, showing that the law must arrive at the result you're seeking.

Point of view is central to all legal writing. Consider how different several famous cases of recent years sound, depending on which side's version you read:

The Rod Blagojevich Case:

The Prop 8 Case:

  • A radical departure from long-settled tradition.
  • Vindication for equal treatment under the law.

The Bill Clinton Case:

  • The President is degrading his office.
  • Impeachment is a political power-play.

"It is something to show that the consistency of a system requires a particular result," Justice Oliver Wendell Holmes wrote in The Common Law, "but it is not all. The life of the law has not been logic: it has been experience." From Justice Holmes to Chief Justice Roberts, great advocates have always known that every brief -- indeed, every case -- must begin with a strong narrative.

Join us back here tomorrow for Part III of our four-part series on Bryan Garner's SCOTUS interviews in LawProse.

Good Legal Writing Is Just Good Writing - Bryan Garner's SCOTUS Interviews, Part I

In 2006 and 2007, legal writing icon Bryan Garner had an amazing opportunity -- he interviewed eight of the nine then-sitting Justices of the United States Supreme Court on legal writing and appellate advocacy. The videotapes have been posted on Garner's LawProse site for a while now, but last year, Garner made the Justices' advice even more accessible, reprinting the transcripts in the journal he founded for the American Society of Legal Writers, the Scribes Journal of Legal Writing.

The transcripts have generated quite a lot of buzz around the law blog world, with posts and commentary at The Wall Street Journal's blog,  Rebecca Copeland's Record on Appeal, A Legal Yankee in King Arthur's Court, the Rocky Mountain Appellate Blog and The Legal Times, among many others. Today we begin a four-part series of commentaries on the Garner interviews.

Lawyers are driven, busy people. Sometimes the last thing we want to do on our off hours is read even more. But one of the primary lessons the Justices have to teach us is that there's no special secret to good legal writing; good legal writing is just good writing. As Justice Kennedy said,

I tell my law clerks, sometimes you can't write anything good because you've never read anything good.

Chief Justice Roberts agreed: "the best teachers of writing are good writers who you read." Many of the Justices mentioned great writers they admire outside of the law. Justice Kennedy reads Hemingway, Shakespeare and Dickens. Justice Ginsburg mentioned the influence of one of her Cornell professors, the great Russian novelist Vladimir Nabokov. Justice Breyer mentioned Montesquieu, Stendahl and Proust.

All writing teachers highlight the importance of editing, and the Justices are no exception. Justice Scalia notes that he revises his own work "over and over again." Justice Thomas argues that "simplicity and clarity" requires "a lot of rounds" of "fairly intense" editing.

Strive for brevity in your legal writing, the Justices advise. Justice Breyer makes the point that a brief which is well below the Court's page limit conveys the author’s confidence in his argument: "he thinks he's really got the law on his side because he only took up 30." Chief Justice Roberts tells a story about clerking for Chief Justice Rehnquist. Justice Rehnquist reviewed one of Roberts' draft opinions, and circled material throughout the draft. "Put it all in footnotes," he directed. When Roberts returned the draft to him, Rehnquist told him: "Now cut out all the footnotes." Brevity is a hard lesson for lawyers to learn, but the fact is, nearly everything we write would be improved if we cut five percent of the words, just as an exercise in streamlining and simplifying. Then do it again.

All of the Justices have their personal preferences, of course, and as is probably inevitable in a group of nine people, some of them contradict each other. Chief Justice Roberts thinks it's okay to add a few facts to your statement of facts that don't directly bear on the issue if it adds a little human interest. Justice Alito mentions that briefs and draft opinions tend to be full of dates that have no impact on anything. Justice Scalia never reads the summary of argument, but Justice Thomas nearly always does. Justices Scalia and Alito use footnotes; Justice Breyer never has. Justice Kennedy doesn't think sentences should begin with "moreover" or "however" or "but," but Chief Justice Roberts and Justices Breyer and Alito all endorse the practice. Justice Kennedy dislikes nouns that have been turned into verbs – he mentions “tasked” and “impact” and words ending in “-ize” -- and thinks most adverbs can be cut. Justices Kennedy and Scalia both suggest deleting trendy words. But there's one thing all the Justices agreed on -- legalese, particularly Latin, is almost never a good idea. Justice Scalia proposes the cocktail party test -- if you'd get a funny look for saying it at a cocktail party, don't put it in your brief.

Chief Justice Roberts and Justice Alito agreed that bad writing can lose a strong case, and good writing can win a marginal one. In the final analysis, according to Justices Kennedy and Ginsburg, lawyers are professional writers. As Justice Ginsberg observed:

 I think that law should be a literary profession.

Join us back here tomorrow for Part II of our four-part series on Bryan Garner's SCOTUS interviews in LawProse.