AI teaches legal writing

The Recorder has Davis Wright Tremaine Turns to Gen AI to Teach Its Associates Legal Writing -- The firm’s proprietary software DWT Prose gives writing recommendations based on the work product of the firm’s experienced attorneys.

Book analyzes SCOTUS writing

The ABA Journal has The Supreme Court is a liberal body—when it comes to legal writing -- Prof. Jill Barton (U. of Miami) spent five years analyzing more than 10,000 pages from Supreme Court opinions, and The Supreme Guide to Writing is the result.

DJ appellate columns today & CMS 18th ed.

Today's DJ has PJ Gilbert's monthly column, titled Short -- In August, when both minds and readers are on vacation, I reflect on the art of brevity in writing and ponder the wisdom of aging.

Today's DJ also has the monthly Exceptionally Appealing column, this one titled Appellate Crash: What we'd miss, about what we'd miss if the state's appellate court computer systems went offline.

Also, LawProse Lesson 437 today has Did you hear about the new Chicago Manual?

The 18th edition of the Chicago Manual of Style has just been published. It’s the most comprehensive style manual ever, and it will answer virtually every question you might have. (Except, that is, for the kinds of legal-style issues that are answered in The Redbook: A Manual of Legal Style, published in its fifth edition in 2023.)

ABAJ articles of appellate note

The ABA journal has:

Chemerinsky: Saving American democracy will require constitutional reforms and Supreme Court term limits, about the Dean's latest book No Democracy Lasts Forever: How the Constitution Threatens the United States.

Legal thriller author David Ellis' day job? Appellate court justice -- Justice David W. Ellis has served on the Illinois Appellate Court for the 1st District for nearly 10 years. But readers may know him better as author David Ellis, bestselling writer of more than a dozen legal thrillers. He was the youngest-serving justice in 2014 when he joined the Illinois Appellate Court for the 1st District, which serves Chicago and Cook County. And along the way, he published 11 novels, including the four-book Jason Kolarich series. He was a finalist for the ABA Journal-sponsored Harper Lee Prize for Legal Fiction in 2012 and 2013. He has also co-written nine books with James Patterson, the latest of which (Lies He Told Me) will be released in September.

From clerk to advocate

The ABA Journal has a great piece by AUSA Vanessa Kubota A Law Clerk's Transition: From umpire’s apprentice to fighter in the ring, in which she recounts some lessons from her clerkship at the Arizona Court of Appeals:

I applied for—and landed—a two-year appellate clerkship at Division One of the Arizona Court of Appeals—a popular choice among law clerk applicants for its uncommon practice of allowing its clerks to sit (and even chime) in on the secret deliberations of the panel. These were opportunities for us clerks to hone our oral advocacy skills.

She also notes that her judge, the Hon. David Weinzweig, will be releasing his book Zen in the Art of Legal Writing "soon."

SG arguers; new entries in Black's

The Volokh Conspiracy blog has a detailed breakdown of precisely who argued for the U.S. at SCOTUS: The Division of Oral Arguments in the Office of Solicitor General (OT 2001-OT 2023)

During the October Term 2023 (OT 2023), OSG argued a total of 53 cases. SG Elizabeth Prelogar argued ten cases and PDSG Brian Fletcher argued three cases. Four DSGs argued cases: Malcolm Stewart (3), Edwin Kneedler (2), Eric Feigin (2), and Curtis Gannon (2). The remaining 31 OSG cases were argued by the 15 ASGs.

Reuters has 'Hot-tubbing' and more. New terms in Black’s Law Dictionary (https://www.reuters.com/legal/government/column-hot-tubbing-more-new-terms-blacks-law-dictionary-2024-06-17/) 

The 12th edition of Black's came out earlier this month, with more than 2,500 new law-related words and phrases.

New additions to Black's include: ghost gun, deepfake, recalcitrant witness, hot-tubbing, crimmigration, black knight, gray knight, shotgun answer, bedbug letter, kakistocracy, code duello, cybersmearing, and shadow docket. 

Black's 12th ed. is out!

Thomson Reuters announces "the release of Black’s Law Dictionary, 12th Edition. It features 2,500 new terms, including definitions of more than 70,000 law-related words and phrases, plus over 5,000 scholarly and judicial quotations on legal terminology.

Every page in the 12th edition of this iconic dictionary has been supplemented and revised. Among the new terms in this edition are deepfake, ghost gun, make-my-day statute, and shadow docket. The greatly expanded 12th edition is the most comprehensive English-language law dictionary ever compiled.

Chief Editor Bryan A. Garner, long regarded as the world's leading legal lexicographer, has been at the helm of Black’s Law Dictionary since the 7th edition was published in 1999."

Also, re legal writing today, see To Make Your Legal Writing Clear, Emulate A Master Chef - Law360

AI opinions arrive!

Law.com has 11th Circuit Judge Uses ChatGPT in Deciding Appeal, Encourages Others to Consider It -- In a proposal he said “many will reflexively condemn as heresy,” Judge Kevin Newsom suggests that those who follow an “ordinary meaning” approach to law should consider how AI-powered LLMs such as ChatGPT can “inform the interpretive analysis.”

In a move he admitted might be seen by the profession as “heresy” or “unthinkable,” Newsom not only admitted to using ChatGPT, but wrote a 32-page concurrence outlining exactly how. In the May 28 opinion, Newson laid out his use of the generative AI chatbot to help inform his analysis of a key issue in an insurance appeal, and encouraged the legal community to consider following his lead.

Law360 has Circuit Judge Writes An Opinion, AI Helps: What Now? 

Bloomberg Law has More Black Women Ascend to Appellate Courts, While Men Stall

• No Black circuit judges under Trump, Biden focused on Black women
• Net loss of Black men on circuit courts under Biden

There are 13 Black women active judges on the 179-member appeals bench compared to 11 men, according to Federal Judicial Center data. The appointment of Black men to the US circuit courts has stagnated in the past decade.

7th Circ. Lambasts Lawyer's 'Twilight Zone' Font - Law360

A Seventh Circuit panel criticized an attorney's use of the typeface used in the "Twilight Zone" logo, urging lawyers to use more conventional fonts recommended in the court's handbook that won't "wear out judicial eyes," though the attorney told Law360 he's unlikely to change. 

Writing for the three-judge panel on Monday, U.S. Circuit Judge Frank Easterbrook said lawyers practicing in the circuit should not use decorative texts — such as the Bernhard Modern typeface used by the attorney for virtual reality ride company AsymaDesign LLC in his appellate filings — because they're better suited for movie posters and television title sequences rather than legal briefs.

Lawyers should follow the typography suggestions in the court's handbook on the topic, "Practitioner's Handbook for Appeals," and typographer Matthew Butterick's similarly helpful book, "Typography for Lawyers," because they "promote the goals of reading, understanding and remembering" lengthy legal passages, Judge Easterbrook wrote.

In other 7th Cir. news Franchise Co. Faces Sanctions For 'Frivolous' 7th Circ. Appeal - Law360

In a Monday opinion authored by U.S. Circuit Judge Frank Easterbrook, the three-judge panel said Sun Holdings "has followed up a frivolous defense during the arbitration with a frivolous strategy in court," adding that the company ignored Seventh Circuit precedent and proceeded "as if the only possible meaning of the contract is the one it espouses."

And Chief Justice's Leadership Is Falling Short, Schumer Says - Law360 -- Senate Majority Leader Chuck Schumer on Tuesday criticized U.S. Supreme Court Chief Justice John Roberts for what he sees as lackluster efforts to address ethical impropriety among high court members.

Circuit font roundup

The Advocacy Blog has posted A Font by Any Other Name Does Not Read the Same which notes:

The First and Fourth Circuits issue opinions in Courier. The Second and Seventh Circuits utilize Palatino. The Fifth Circuit favors Century Schoolbook, as does the Supreme Court (although its orders are rendered in the very odd Lucida Sans Typewriter) and the Federal Circuit. The rest, the Third, Sixth, Eighth, Ninth, Tenth, and Eleventh rely on Times New Roman.

Writing tips; panel composition articles

Law360 has Former Minn. Chief Justice Instructs On Writing Better Briefs

• Be a good writer. -- To be a good brief writer, you must first be a good writer. That means using topic sentences in most paragraphs and transitions from one paragraph to the next. Shorter sentences with fewer clauses are better than longer sentences with lots of clauses.
• Know your audience. -- It is important that you know your audience. In other words, are you writing a brief for an error-correcting court, or are you writing to a precedent-setting court?
• Spend time wisely on the standard of review. -- The standard of review really matters when it matters. 
• Be complete and accurate with the record.
• Be intentional with the facts.
• Use a summary of argument.
• Does your brief need some legal context?
• Lead with the best.
• Be clear about what is an alternative argument.
• Be mindful of your tone.

Today's DJ's Exceptionally Appeal column is Predicting appellate outcomes based on the panel, discussing two recent law review articles: Klatchko & Keefer, Judicial Backgrounds Influence the Standard of Review, 55:1 Univ. Pac. L.Rev. 1 (Nov 2023) and Cohen, The Pervasive Influence of Political Composition on Circuit Court Decisions, Harvard Discussion Paper No. 1109, Feb. 2024.

ABA Litigation magazine draws on The Beatles!

The ABA Litigation Section's publication Litigation has super-fun themed-issue (vol. 50:2, Winter 2024) titled Litigation Road: A Magical Mystery Tour, in which 16 articles are titled with Beatles songs. Very clever and amusing!

Blue, Yellow, or ...

 

In response to yesterday's DJ piece by Zareh Jaltorossian, Judge Helen Williams writes that not all superior court judges want BlueBook citations; some prefer YellowBook. See Some superior court judges prefer the California Style Manual.

And Beds begins this unpub today with: "As Ralph Waldo Emerson once wrote, “Money often costs too much.” In this case, money appears to have cost two siblings their relationship."

Roundup time

Today's DJ has Zareh Jaltorossian in Throwing the book at improper citations, sharing some general writing advice and urging that:

For trial court briefs, stick with the simpler Bluebook format we all learned in law school. For appellate briefs, follow the California Style Manual. Don’t combine the two systems. And when in doubt, call an appellate lawyer for advice. We’re always happy to talk citation format.

Today's DJ also has  Myron Moskovtiz's How to use precedent cases - Part 1, about non-binding precedent.

Here's an interesting unpub from 4/3, in which the appellant copied a dissenting decision from an unpub'd case (Srabian) to make an argument, but did not the cite case. The respondent calls this out, and here's what the court has to say:

Citing to rule 8.1115’s prohibition on citing to nonpublished cases, [Respondent] replies [Appellant] abandoned the issue because it copied Justice Kathleen Meehan’s dissenting opinion verbatim. [A] does not respond to [R's] assertion that it copied the dissenting opinion verbatim; it appears [A] did. [A] answers it did not cite to Srabian (indeed it did not mention Srabian at all in its opening brief), but merely adopted the dissenting opinion’s reasoning, which is permissible. We need not weigh in on this novel dispute. We recognize though that with the advent of online legal databases and the posting of nonpublished opinion we are certain the “adoption” of legal reasoning is common practice.

And NLJ has 'The Glue of This Court': Justices, Clerks Receive O'Connor's Casket at Supreme Court -- The nation's first female justice lies in repose at the Great Hall of the Supreme Court.

Inside the Great Hall, O’Connor’s casket was placed upon a catafalque that once supported the body of President Abraham Lincoln as he lay in state in the U.S. Capitol Rotunda after his assassination in 1865. The platform, covered in decorative black cloth, was loaned to the court by Congress for the ceremony.

O’Connor’s invitation-only funeral service will take place Tuesday at the National Cathedral. It will be livestreamed at cathedral.org.

Also of note is the Final Report of 2023 Legislation of Interest to Appellate Courts and the Judicial Council's Summary of Court-Related Legislation

Alito, AI, Attorney Fees

Law360 has Sen. Whitehouse Files Ethics Complaint Against Justice Alito -- Sen. Sheldon Whitehouse, D-R.I., wrote to Supreme Court Justice John Roberts on Monday to file an ethics complaint against Justice Samuel Alito for alleged violations of "several canons of judicial ethics, including standards the Supreme Court has long applied to itself. "

Myron Moskovitz's DJ column today is My AI Nightmare, in which he imagines the Terminator as an appellate lawyer. He concludes that "at least for now" humans make better appellate lawyers than machines because AI can't apply intuition to pick up unstated cues at oral argument: "appellate judges tend to ask questions rather than make comments. But simply answering their questions literally is a big mistake. Behind every judge’s question lurks a viewpoint."

And the DJ's Exceptionally Appealing monthly column has Apostrophic Apotheosis: Whose fees are they, anyway? Prompted by Estate of Gentry v. Hamilton-Ryker IT Solutions, 3:19-CV-00320, 2023 WL 5018432, at *1 n.2 (S.D. Tex. Aug. 7, 2023), this piece attempts to tackle one of the "burning legal questions of our generation," “Is the proper term ‘attorney fees,’ ‘attorneys fees,’ ‘attorney’s fees,’ or ‘attorneys’ fees?’”

Blumberg Law has Color of Justice: All-White Benches Persist in US District Courts -- Of the 94 federal district courts, 25 have never had a non-White judge, according to a Bloomberg Law analysis of federal court records.

Law360 has Here's Where Judicial Vacancies Stand As Congress Returns

• The Biden administration has gotten 140 judges (including a Supreme Court justice) confirmed so far, a fact much celebrated by the White House and Democrats. But at the end of August, that impressive number still trailed the 146 secured by Trump at the same point in his administration
• As of Sept. 1, there are seven vacancies on appeals courts, which are in the First, Third, Fourth, Fifth, Seventh, Ninth and Tenth circuits. Four of the seven vacancies have nominees, according to the Administrative Office of the U.S. Courts. Biden also can nominate a successor to Judge Julia Smith Gibbons of the Sixth Circuit, who plans to take senior status when her successor is confirmed.
• There are 61 vacancies for district courts as of Sept. 1, with 25 nominees pending.

And see LASC's press release today: NATION’S LARGEST TRIAL COURT EXPANDS UNPRECEDENTED RECRUITMENT AND RETENTION CAMPAIGN TO ADDRESS CHRONIC  COURT REPORTER SHORTAGE

New Redbook 5th edition

 

Garner's The Redbook: A Manual on Legal Style has just issued the 5th edition. 

New Supreme Court Fellows Begin Term -- Four new U.S. Supreme Court Fellows will begin their 2023-2024 fellowships in September -- including a former law clerk for the 9th Circuit's Sidney Thomas.

Party poopers! After considering public comment, the California Supreme Court Committee on Judicial Ethics Opinions (CJEO) has adopted a final opinion on whether a judicial officer may accept an invitation to attend a celebration for a for-profit law firm.

Interested in appealability in the probate context? This unpub may be fun reading. The discussion kicks off with: "Our analysis begins and ends with the question of appealability."

Opinion formatting

The NLJ has Single or Double Spaced? Why Judicial Opinion Formatting Matters -- Law professor Joe Fore makes the aesthetic and practical case for greater uniformity in circuit court opinion formats.

University of Virginia law professor Joe Fore is in the midst of a new research project: breaking down how each federal appeals court formats judicial opinions, from text size to font.
The topic goes beyond mere aesthetics, he said. Certain formatting can help make complex rulings more accessible and easily digestible for journalists and the broader public—something Fore said is especially needed in the age of social media.

• Font: All of the circuits use Times New Roman, except the Fifth Circuit (Equity), Federal Circuit (Century Schoolbook), First Circuit (Courier New), Second and Seventh Circuits (Palatino Linotype) and Eleventh Circuit (Dante).
• Text Size: Six circuits use 12 point size text (the First, Sixth, Seventh, Ninth, D.C. and Federal), five use 13 point (Second, Third, Fourth, Fifth, and Tenth) and two use 14 point (Eighth and Eleventh).
• Line Spacing: Six circuits use less than 1.5 line spacing, four use about 1.5 spacing and three use double spacing or more than double spacing.
• Margins: Six circuits use 1 inch or less, three use 1.5 inches or 1.75 inches, and four use 2 inches or more.

ChatGPT appellate briefs?

Law.com has Appellate Lawyers Say ChatGPT Can Help in Brief Writing—to a Point -- The AI tool can help with style but is not reliable for research, attorneys add.

provided caution is exercised—some appellate specialists say there are still ways to incorporate the tool in the process of legal-brief writing.

"The Joy of Editing"

Today's DJ has Myron Moskovitz's The Joy of Editing, which concludes:

Careful editing might seem a mere perfectionist’s obsession. But it’s more than that. Appellate Justices spend most of their working lives reading and writing. That is their livelihood, so they take it seriously. Typos and the like stop them in their tracks – breaking their absorption of the substance of your argument. Not good.

And, when a judge sees a stupid typo, she might begin to wonder about how careful you are on the substance of the brief – your factual assertions, your discussion of cases, and your basic arguments. If the brief is sloppy in form, maybe it’s sloppy in substance too. All are in question, just because you skimmed over the last task.

Law360 has Newman, Fed. Circ. Committee Call Mediation 'Unsuccessful'; Bloomberg Law's story is 96-Year-Old Judge Deadlocks With Appeals Panel on Fitness Probe

First line contenders...

A few memorable first lines have popped up recently. PJ Stratton in 2/8 starts off this published opinion with: "In a case which seems destined for the pages of a civil procedure casebook ...." (And see commentary here.)

And in this unpub'd from Beds: "Every ruling a judge hands down makes someone unhappy.  This is a case in which the judge’s ruling made everyone unhappy."

  

Slamming poor appellate briefing!

 

Check out this intro paragraph from this unpub'd 4/3 decision today:

This case demonstrates the importance of adequate briefing. As we have said in the past, “appellate practice entails rigorous original work in its own right. . . . [T]he appellate brief offers counsel probably their best opportunity to craft work of original, professional, and, on occasion, literary value.” (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 410.) Appellant’s brief cannot be said to be even minimally compliant with the California Rules of Court, let alone a “work of literary value.” There is little for us to consider, because despite 43 pages of briefing, appellant says very little that is coherent. If there are arguable issues in this brief, they are obscured by cant, vitriol and borderline contempt. We were unable to discuss this with counsel because he did not appear for oral argument. We have no choice but to affirm the trial court’s judgment.