Appellate Writing 2014Appellate Writing 2014

Class 3Class 3

ArgumentArgumentCRAC isn’t whackCRAC isn’t whack

• CConclusiononclusion– State your issue as a conclusionState your issue as a conclusion

• RRuleule– Quote the pertinent language from the statuteQuote the pertinent language from the statute– State a well-accepted common law rule in its familiar languageState a well-accepted common law rule in its familiar language– Use a “rule cluster” – well-accepted general rule to narrow rule Use a “rule cluster” – well-accepted general rule to narrow rule

at issueat issue

• AAnalysis / Applicationnalysis / Application– Apply rules not casesApply rules not cases– Do not begin by drawing analogiesDo not begin by drawing analogies

• CConclusiononclusion

ArgumentArgumentGeneral AdviceGeneral Advice

• After stating the overarching theme or focus of your brief, After stating the overarching theme or focus of your brief, proceed into the argument in a highly compartmentalized, proceed into the argument in a highly compartmentalized, issue-by-issue formatissue-by-issue format

• Consider incorporating the proper standard of review in the Consider incorporating the proper standard of review in the topic sentence(s) introducing each pointtopic sentence(s) introducing each point

• Identify and focus on the precise jurisprudential flashpoint of Identify and focus on the precise jurisprudential flashpoint of controversycontroversy

• Consider the consequences of the rule you are urging upon the Consider the consequences of the rule you are urging upon the courtcourt

• Determine whether the rule is consistent with or contradictory Determine whether the rule is consistent with or contradictory to some binding legal precept of your jurisdictionto some binding legal precept of your jurisdiction

• Determine whether the conclusion is coherent in the sense of Determine whether the conclusion is coherent in the sense of being a sound, sensible, just, and desirable norm for the being a sound, sensible, just, and desirable norm for the guidance of affairsguidance of affairs

ArgumentArgumentIdentifying the Flashpoint of ControversyIdentifying the Flashpoint of Controversy

• Where the law and its application are clear, Where the law and its application are clear, don’t waste effort or spacedon’t waste effort or space

• Where the law is clear and the sole question is Where the law is clear and the sole question is its application, don’t waste effort or space its application, don’t waste effort or space justifying the rulejustifying the rule

• Where neither law or application is clear, you Where neither law or application is clear, you must:must:

– Find the lawFind the law

– Interpret the lawInterpret the law

– Apply the law to the facts of your caseApply the law to the facts of your case

ArgumentArgumentConsequences of Your RuleConsequences of Your Rule

• SocialSocial

• Economic Economic

• PoliticalPolitical

ArgumentArgumentUsing CasesUsing Cases

• Direct QuotesDirect Quotes

• The “Phrase that Pays”The “Phrase that Pays”

• Altered QuotesAltered Quotes

• ParaphraseParaphrase

• ParentheticalsParentheticals

ArgumentArgumentDirect QuotesDirect Quotes

Ten years ago, the Court made clear that university Ten years ago, the Court made clear that university officials violate the First Amendment when they officials violate the First Amendment when they impose viewpoint-based discrimination on funding impose viewpoint-based discrimination on funding decisions for student newspapers. decisions for student newspapers. Rosenberger v. Rosenberger v. Rector and Visitors of the Univ. of VirginiaRector and Visitors of the Univ. of Virginia, 515 U.S. , 515 U.S. 819 (1995). The Court distinguished cases in which 819 (1995). The Court distinguished cases in which the university was paying for an agent to promote the university was paying for an agent to promote the university's message from cases in which the the university's message from cases in which the university was facilitating the speech of student university was facilitating the speech of student groups. groups. Id.Id. at 834. “Having offered to pay the third- at 834. “Having offered to pay the third-party contractors on behalf of private speakers who party contractors on behalf of private speakers who convey their own messages, the University may convey their own messages, the University may not silence the expression of selected viewpoints.” not silence the expression of selected viewpoints.” Id.Id. at 835. at 835.

ArgumentArgumentThe “Phrase that Pays”The “Phrase that Pays”

First use:First use: “A school need not tolerate student speech that is inconsistent with its ‘ “A school need not tolerate student speech that is inconsistent with its ‘basic educational basic educational missionmission,’ even though the government could not censor similar speech outside the school.” ,’ even though the government could not censor similar speech outside the school.” Hazelwood Sch. Dist. V. Kuhlmeier, 484 U.S. 260, 266 (1988) (citation omitted).Hazelwood Sch. Dist. V. Kuhlmeier, 484 U.S. 260, 266 (1988) (citation omitted).

Subsequent usage:Subsequent usage:

- For at least three reasons, a public school may reasonably conclude that student advocacy of - For at least three reasons, a public school may reasonably conclude that student advocacy of

illegal drug use is fundamentally inconsistent with the school's illegal drug use is fundamentally inconsistent with the school's basic educational missionbasic educational mission. .

- Petitioners did not, however, prohibit and punish respondent's speech for that reason; instead, - Petitioners did not, however, prohibit and punish respondent's speech for that reason; instead,

they did so because respondent's message was inconsistent with the school's they did so because respondent's message was inconsistent with the school's basic basic

educational missioneducational mission. .

- Unlike respondent's banner, Tinker's armband protesting the Vietnam war did not advocate - Unlike respondent's banner, Tinker's armband protesting the Vietnam war did not advocate

illegal conduct, and did not address a topic central to a school's illegal conduct, and did not address a topic central to a school's basic educational missionbasic educational mission..

ArgumentArgumentAltered QuotesAltered Quotes

Thus, while the university campus is Thus, while the university campus is intended to be a caldron of “ ‘speculation, intended to be a caldron of “ ‘speculation, experiment and creation,’ ” experiment and creation,’ ” Regents of Univ. Regents of Univ. of Cal. v. Bakkeof Cal. v. Bakke, 438 U.S. 265, 312 (1978) , 438 U.S. 265, 312 (1978) (citation omitted), “[t]he role and purpose of (citation omitted), “[t]he role and purpose of the American public school system” is, in the American public school system” is, in contrast, to “ ‘inculcate the habits and contrast, to “ ‘inculcate the habits and manners of civility as values in themselves manners of civility as values in themselves … and as indispensable to the practice of … and as indispensable to the practice of self-government in the community and the self-government in the community and the nation,’ ” nation,’ ” Bethel Sch. Dist. No. 403 v. FraserBethel Sch. Dist. No. 403 v. Fraser, , 478 U.S. 675, 681 (1986) (citation omitted).478 U.S. 675, 681 (1986) (citation omitted).

ArgumentArgumentParaphraseParaphrase

In In Perry Education Association v. Perry Perry Education Association v. Perry Local Educators AssociationLocal Educators Association, 460 U.S. , 460 U.S. 37 (1983), this Court established three 37 (1983), this Court established three categories of forums under the public categories of forums under the public forum doctrine: 1) the quintessential forum doctrine: 1) the quintessential public forum, 2) the limited public public forum, 2) the limited public forum and 3) the nonpublic forum. forum and 3) the nonpublic forum. IdId. . at 45-46. at 45-46.

ArgumentArgumentParentheticalsParentheticals

Under this Court's well-settled First Amendment Under this Court's well-settled First Amendment jurisprudence, the first step when determining the degree of jurisprudence, the first step when determining the degree of deference accorded to government restrictions on speech in deference accorded to government restrictions on speech in any government-created forum is to determine the nature of any government-created forum is to determine the nature of that forum, even for adult speakers and audiences. that forum, even for adult speakers and audiences. See, e.g., See, e.g., PerryPerry, 460 U.S. at 45-48 (, 460 U.S. at 45-48 (applying forum analysis to applying forum analysis to intra-school mail system for adult staffintra-school mail system for adult staff); ); Lehman v. City Lehman v. City of Shaker Heightsof Shaker Heights, 418 U.S. 298, 302-04 (1984) (, 418 U.S. 298, 302-04 (1984) (same, to same, to advertising on city-owned busesadvertising on city-owned buses); ); Cornelius v. NAACP Cornelius v. NAACP Legal Defense & Educ. Fund, Inc.Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800-06 , 473 U.S. 788, 800-06 (1985) ((1985) (same, to charity drive aimed at federal same, to charity drive aimed at federal employeesemployees); ); Int’l Soc’y for Krishna Consciousness, Inc. v. Int’l Soc’y for Krishna Consciousness, Inc. v. LeeLee, 505 U.S. 672, 678-83 (1992) (, 505 U.S. 672, 678-83 (1992) (same, to airportsame, to airport); ); Arkansas Educ. Television Comm’n v. ForbesArkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666, , 523 U.S. 666, 677-82 (1998) (677-82 (1998) (same, to debate on publicly-owned same, to debate on publicly-owned television stationtelevision station); ); United States v. American Library United States v. American Library Ass’n, IncAss’n, Inc., 539 U.S. 194, 205-07 & n.3 (2003) (., 539 U.S. 194, 205-07 & n.3 (2003) (same, to same, to internet access in public librariesinternet access in public libraries).).

Logical FallaciesLogical Fallacies

• Logical fallacies are mistakes in reasoningLogical fallacies are mistakes in reasoning

• Example: “…[S]harp-tongued Benjamin Example: “…[S]harp-tongued Benjamin Disraeli, so the story goes, was ordered in Disraeli, so the story goes, was ordered in the last century to withdraw his the last century to withdraw his declaration that half the Cabinet were declaration that half the Cabinet were asses. ‘Mr. Speaker, I withdraw,’ was asses. ‘Mr. Speaker, I withdraw,’ was Disraeli's response. ‘Half the Cabinet are Disraeli's response. ‘Half the Cabinet are not asses.’”not asses.’”

Sarah Lyall, "The World; The Right Hon. Twerp Debates the Windbag", New York Times, 2/26/1995Sarah Lyall, "The World; The Right Hon. Twerp Debates the Windbag", New York Times, 2/26/1995

More Logical FallaciesMore Logical Fallacies

• Correctly reasoned:Correctly reasoned:– All men like fantasy footballAll men like fantasy football– Professor Frieden is a manProfessor Frieden is a man– Therefore, Professor Frieden likes fantasy footballTherefore, Professor Frieden likes fantasy football

• Correctly reasoned:Correctly reasoned:– All men like fantasy footballAll men like fantasy football– Mrs. Frieden doesn’t like fantasy footballMrs. Frieden doesn’t like fantasy football– Mrs. Frieden is not a manMrs. Frieden is not a man

More Logical FallaciesMore Logical Fallacies

• Incorrectly reasoned:Incorrectly reasoned:– All girls like to play with Barbie dollsAll girls like to play with Barbie dolls– Professor Frieden likes to play with Barbie dollsProfessor Frieden likes to play with Barbie dolls– Therefore, Professor Frieden is a girlTherefore, Professor Frieden is a girl

• Incorrectly reasoned:Incorrectly reasoned:– All girls like to play with Barbie dollsAll girls like to play with Barbie dolls– Professor Frieden is not a girlProfessor Frieden is not a girl– Therefore, Professor Frieden doesn’t like to Therefore, Professor Frieden doesn’t like to

play with Barbie dollsplay with Barbie dolls

More Logical FallaciesMore Logical Fallacies

• Incorrectly reasoned:Incorrectly reasoned:– Outbuildings within 35 yards of the home are Outbuildings within 35 yards of the home are

part of the curtilagepart of the curtilage– The outbuilding in question is 50 yards from The outbuilding in question is 50 yards from

the homethe home– Therefore, the outbuilding in question is not Therefore, the outbuilding in question is not

part of the curtilagepart of the curtilage

Argument Point HeadingsArgument Point Headings

• ConciseConcise and and persuasivepersuasive summary of summary of argument to followargument to follow

• Your headings should:Your headings should:– Identify the applicable law, the way in which Identify the applicable law, the way in which

the law applies to the facts, and the the law applies to the facts, and the conclusions which followsconclusions which follows

– Use powerful wording and precise factUse powerful wording and precise fact– Avoid adjectives and adverbs, where possibleAvoid adjectives and adverbs, where possible– Be oft-revisedBe oft-revised

Tips on Drafting Your Tips on Drafting Your Statement of FactsStatement of Facts

• Draft the Argument section firstDraft the Argument section first

• Outline the Statement of Facts, Outline the Statement of Facts, including every fact you rely upon in including every fact you rely upon in your argumentyour argument

• Make sure that your outline includes Make sure that your outline includes all of the material factsall of the material facts

• Make sure that your outline includes Make sure that your outline includes all of the emotionally-significant factsall of the emotionally-significant facts

Tips on Drafting Your Tips on Drafting Your Statement of FactsStatement of Facts

• Make sure that your outline includes all Make sure that your outline includes all of the background facts your reader of the background facts your reader may need to know to understand the may need to know to understand the case (or may just want to know)case (or may just want to know)

• However, don’t overdo it. Be concise.However, don’t overdo it. Be concise.

• Draft an entire Statement of Facts Draft an entire Statement of Facts

• Submit only the first two pagesSubmit only the first two pages

Tips on Drafting Your Tips on Drafting Your ArgumentArgument

• Complete all of your researchComplete all of your research

• Outline the law applicable to your Outline the law applicable to your argumentargument

• Select the record facts which are Select the record facts which are applicable to the lawapplicable to the law

• Outline a persuasive argument, using Outline a persuasive argument, using CRACCRAC

Tips on Drafting Your Tips on Drafting Your ArgumentArgument

• Draft each subsection of the argument Draft each subsection of the argument from your outline, using outline from your outline, using outline headings as your argument headingsheadings as your argument headings

• Ensure that your argument headings Ensure that your argument headings are complete sentences (except are complete sentences (except where that is not beneficial)where that is not beneficial)

• Ensure that your argument is properly Ensure that your argument is properly sourced to the law and the recordsourced to the law and the record

Tips on Project 2Tips on Project 2

• You must:You must:– Submit the first two pages of your Statement of Submit the first two pages of your Statement of

FactsFacts– Submit your draft argument on threshold issue: Submit your draft argument on threshold issue:

whether Mr. Coleman was speaking as an whether Mr. Coleman was speaking as an employee or as a citizen when he discussed the employee or as a citizen when he discussed the food trucks with Mr. Patelfood trucks with Mr. Patel

– Include the applicable standard of reviewInclude the applicable standard of review– Not exceed 4,500 words total (Statement of Not exceed 4,500 words total (Statement of

Facts and Argument together) Facts and Argument together)

More Tips on Project 2More Tips on Project 2

• You must also:You must also:– Adhere to all applicable rulesAdhere to all applicable rules– Create a detailed, sentence outline of Create a detailed, sentence outline of

everything everything beforebefore you begin to write you begin to write– Bring your complete outline with you for Bring your complete outline with you for

our discussion of Project 2our discussion of Project 2

Even More Tips on Project 2Even More Tips on Project 2

• You must also:You must also:– Submit the project on timeSubmit the project on time– Be prepared to thoughtfully discuss the Be prepared to thoughtfully discuss the

project and answer all of my questions project and answer all of my questions during our individual meetings over the during our individual meetings over the next two weeksnext two weeks

Even More Tips on Project 2Even More Tips on Project 2

• During our meeting, you must :During our meeting, you must :– Wear business casual clothingWear business casual clothing– Bring a hardcopy of your Project 2 Bring a hardcopy of your Project 2

submissionsubmission– Ask good questions and get clarification Ask good questions and get clarification

where neededwhere needed– Take good notesTake good notes