Real property and land use
My reading of today’s twin opinions in Martin v. Garnerand Martin v. City of Alexandria convinces me once again that things are simply different up in the State ofNorthern Virginia. These appeals deal with the Garners’ desire to build a house in OldTown, on a lot that’s 36 feet wide and 44 feet deep. Only in Alexandria could a city staffer describe this property, presumably with a straight face, as being “a large buildable lot.”
Say what? I definitely don’t live in a mansion down here in Tidewater; it’s a simple brick ranch. But the footprint of my house is significantly bigger than this whole lot. Here in Virginia Beach, that would be regarded as a mostly useless spur of land. In OldTown, however, it’s valuable enough for property owners to spend a whole lot of money on lawyers.
The first appeal deals with the ownership of an 8’ alley dividing the Garners’ building site (now vacant) and the Martins’ home. The Garners win this round, as the justices affirm a trial-court ruling that says that each neighbor owns to the center of the alley. That’s based on the language of deeds in the families’ respective chains of title.
The second case is more intriguing. It involves a grant of a variance by the City to the Garners to facilitate their building a home on this postage stamp. The Martins, who had opposed the variance, appealed, and they win this round; the justices reverse and enter final judgment, effectively denying the variance request.
The BZA had approved the variance on four grounds, and the Supreme Court disagrees with each of those. Three of the four are fairly straightforward. First, the BZA had held that the Garners’ parcel was different because it was vacant; the ordinance, according to the BZA, applied to existing buildings, not to new construction. Alas, the ordinance itself is not thus restricted: "All buildings and structures erected hereafter . . . shall be subject to all regulations of this ordinance."
Two other grounds for the variance related to the overlay of a historic preservation ordinance on the property. The justices find, quite correctly, that this condition isn’t unique to this property; a whole host of other properties fall within that area.
It’s when I get to the only remaining ground that I find myself stopping short of full agreement with the justices. The BZA had held that the configuration of the lot, combined with the side-and-rear setback lines, left an insufficient building area. The side lines are no big deal, because this lot is wider than that for typical row houses (I assume 25’). But the rear line is indeed a hardship, at least in my view. The standard lot is 100’ deep, and there’s a 16’ rear setback. That still leaves plenty of room for ordinary lots; but this one is only 44.33 feet deep. The opinion notes that most of the other homes in this area don’t have back yards at all, because of the shallowness of the lots.
I’m going to assume that these lots were platted long before there was a zoning ordinance. That means that the imposition of these zoning restrictions has created a special hardship upon these short lots. This is the kind of thing that variances are for.
Back in 2004, the court handed down Cochran v. BZA, in which it noted that variances should rarely be granted, because the statute authorizing them called for them only where there was “a clearly demonstrable hardship approaching confiscation.” To deal with the harshness of that ruling, the legislature in 2009 removed the words approaching confiscation from the statute, presumably thereby making it easier for localities to grant variances to prevent “clearly demonstrable hardship.”
Today’s opinion notes that statutory change, but it observes that the city charter still requires that "the strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the use of property," before a variance can be granted. In my thinking, an effective prohibition or unreasonable restriction amounts to pretty much the same thing as “approaching confiscation.” I don’t get a vote, but on this one, I might have been a little more receptive to this factor.
In the end, the Garners get confirmation of title to their 4’ side of the alley, but they lose – permanently – their ability to build the house they want. The second opinion notes that there may be of-right designs, so fortunately the land isn’t useless.
Smith v. Commonwealthcontains a very interesting legal issue. After plea negotiations, Smith pleaded guilty in 1999 to carnal knowledge of a minor (the original charge was statutory rape). The trial judge “reluctantly accepted the plea agreement,” giving Smith a ten-year suspended prison sentence.
At that time, state law classified carnal knowledge of a minor as a non-violent sex offense. For that kind of offense, Smith would be required to register once a year for ten years, after which he could seek an expungement.
But in 2006, the United States decided to toughen its sex-offender laws. It required the states, as a condition of receiving federal money, to “implement comprehensive sex offender registration standards,” including the classification of Smith’s crime as a violent offense. That change (which the Commonwealth did implement) would produce a profound effect upon Smith’s post-conviction terms. He still didn’t have to go to prison, but he’d have to register quarterly, not annually. And he’d have to do that for the rest of his life, with no hope of expungement.
Can they do that? Smith felt he’d been the victim of an ex post facto change in the law. He contended in court that he had a contractual right to the terms of law that were in effect at the time he pleaded guilty. After all, if the law in 1999 had required permanent quarterly registration and a permanent record, he might not have pleaded guilty.
This case turns on whether Smith had a contractual right or not. The statutes in existence at the time were, the court rules today, indeed incorporated by reference into his plea agreement. But that’s still not enough to establish a property right. Justice Mims, writing for the unanimous court, notes that all contract rights are subject to the state’s police power to protect its citizens. The federal-funds incentive notwithstanding, Virginia did have a law-enforcement-related reason to pass these changes, and Smith didn’t have a right to freeze the law at that place in time. As Justice Mims puts it:
the plea agreement contained an implied condition that Smith would remain subject to the state’s future exercise of its police power. That power included the inherent authority to pass non-punitive legislation regulating convicted sex offenders.
For the same reason, the court also rejects Smith’s takings claim based on the Virginia Constitution. And since a hearing on this wouldn’t have changed any operative facts, he doesn’t state a claim for deprivation of procedural due process, either.
State Bar disciplinary cases in the Supreme Court are, thankfully, rare, but Livingston v. VSBis even rarer – the respondent is an assistant Commonwealth’s Attorney who’s charged with misconduct in the course of a criminal prosecution.
Our story starts with a guy who wanted to buy Oxycodone and had the misfortune to arrange for a purchase from an undercover cop. His misfortune was compounded when the site for the purchase was within 1,000 feet of a school. And even then, he didn’t get the real deal; the officer delivered the requested number of tabs of an imitation for the drug, “made especially for undercover drug operations.”
Our hero got indicted possession with intent to distribute Oxycodone, and for the same offense within 1,000 feet of a school (they’re separate offenses). After the prosecution rested, the defense moved to strike the first count because the defendant never actually possessed Oxycodone, and he was never charged with possession of an imitation controlled substance. The defense also moved to strike the second count because there was no evidence that the defendant intended to distribute the substance within 1,000 feet of a school.
The prosecutor conceded that the first charge should be struck, but asked for leave to amend. Instead, he got leave to reindict for the correct offense. The judge dismissed both indictments. The prosecutor went back to the office and directed his staff to prepare a new indictment. But that one had a flaw, too: instead of charging the defendant with possession, it alleged that he "did manufacture, sell, give, or distribute an imitation controlled substance which imitates a schedule I or II controlled substance.”
The prosecutor admittedly didn 't review this new indictment carefully before he went to the grand jury. At the ensuing trial, the court dismissed the indictment. The prosecutor decided to appeal that ruling to the CAV, but he didn’t file a petition for appeal in time; instead, he apparently filed a “brief” (today’s opinion employs the quotation marks) in which he blithely referred to the third indictment as charging possession with intent to distribute.
The Bar charged the prosecutor with violating rules relating to competent representation, assertion of frivolous claims or contentions, and the additional responsibilities of a prosecutor. A district committee and the disciplinary board, in turn, each imposed a public reprimand with terms.
Today, the Supreme Court affirms the competence finding, but reverses the other two, remanding the case for recalculation of an appropriate sanction. The court finds that the prosecutor failed to provide competent representation to his client (the Commonwealth) when he misread the law in a couple of respects in the first trial and brought an indictment on the wrong charge in the second phase. The justices are more forgiving on the other counts, finding that they aren’t supported by clear and convincing evidence.
The court takes the easy way to resolve a potentially thorny legal issue in Friends of the Rappahannock v. Caroline County. At issue is a permit granted by the county to two companies to conduct sand and gravel mining on the banks of the RappahannockRiver. That kind of mining is a permitted use in the zoning classification, subject to issuance of a permit.
Several individuals and a public-advocacy group filed a declaratory-judgment action that challenged the issuance of the permit. The aforementioned thorny issue arose almost immediately, when the permittees and the county argued that the petitioners didn’t have standing. They claimed that the petitioners weren’t aggrieved by the issuance of the permits, and their injury, if any, was in common with the members of the public as a whole.
The petitioners responded that under the DJ Act, they didn 't have to be aggrieved; they merely had to have a justiciable interest. Some Supreme Court opinions use the former term, and some use the latter. Which is correct?
Justice Millette, writing for the full court, cuts this Gordian knot by holding that in this context, the two terms mean the same thing; he calls the wording “a distinction without a difference.” Accordingly, since the petitioners don’t own the property for which the permit was issued, they have to show two things in order to have standing. First, they have to establish physical proximity; second, they have to show particularized harm different from that suffered by the public.
The individual owners all owned or leased property relatively nearby, and the court assumes that they meet the proximity requirement. But the court finds that they don’t state claims for particularized harms, so the trial court was correct to dismiss their requests for relief. Noting that the excavation was already a permitted use on the site, the court rules that there’s nothing about the permittees’ specific use that triggers standing for the petitioners. The county had attached a number of conditions to the permit, and the court finds that the petitioners have failed to demonstrate that those conditions would be insufficient to address any particularized concerns.
We’ve come all the way to the last case of the day. You know what’s been missing thus far? Disagreement. Each of the seven cases discussed above has been unanimous. Until a very few years ago, seeing several unanimous opinions in a row was nothing unusual; but in recent years, a divided court has become almost the norm. Finally, in Paugh v. Henrico Area Mental Health & Developmental Services, we get a dissent today.
A little over a year ago, a magistrate issued a temporary detention order for Paugh after learning that he was suicidal. The informant also stated that he possessed firearms. The next day, a special justice involuntarily committed him. He appealed to circuit court, where according to the statutory setup, he was entitled to a trial de novo.
The trial court considered what the relevant date for its determination was. Should it be the date of the TDO? How about the date on which the special justice committed him? Alternatively, it could be the date on which the circuit court conducted its hearing. The court concluded that as a matter of “common sense,” his role in considering this appeal was to determine whether Paugh met the criteria for involuntary commitment on the date of the TDO. The judge ruled that the evidence clearly established that Paugh was a danger to himself on that date, so he ruled that the TDO was valid.
That brings us to our freshly divided Supreme Court. Justice Powell writes the majority opinion, holding that the trial court had used the wrong date for analysis. Since it’s a trial de novo, it doesn’t matter what happened below; the operative question is whether Paugh needed commitment right then. But that issue was pretty much settled, even before the parties got to circuit court; Paugh had been released from detention the day before he filed his appeal to circuit court. No one contended that, by the time the case got to circuit, he needed to be detained. The justices accordingly reverse the judgment and dismiss the petition for commitment.
There was an unexplained phenomenon in that last paragraph; you may have noticed it. If Paugh had been released, why have the appeal at all? Isn’t it moot as soon as he walks out the door? Not if there are collateral consequences of the issuance of the order. And in this case, there’s a big one: A person who has been involuntarily committed can’t possess firearms. The consequence of dismissing this case, rather than affirming, is that the formerly suicidal person will once again have access to his gun collection. (Justice McClanahan, writing in dissent, believes that “avoidance of this prohibition is apparently Paugh 's paramount objective in pursuing the instant action.” He’s already free; now he wants his firearms back.)
As Justice Mims points out in a concurrence, Paugh used the wrong Code provision to challenge the TDO. The one he used is for the benefit of those persons who are still detained; a different one applies to those who have been released and want to avoid the collateral consequences. But since the appellee never objected below to the procedure used, and didn’t assign cross-error, Justice Mims finds that process to be the law of this case, and he “reluctantly” concurs.
No dice, Justice McClanahan replies. She would affirm on the right-for-the-wrong-reason doctrine. She agrees that the relevant inquiry is as of the date of the circuit-court hearing, but she finds nothing in the review statutes that requires dismissal of the petition if the detainee is no longer in need of detention. In her view, the result of a successful challenge by the detainee is that he’s released from detention; if the detainee wants restoration of his right to carry firearms, he can use the correct statute to go to a GDC judge and ask for that restoration. The only thing for the judge to do, applying the statute that Paugh actually used, was to decide whether the original order of commitment was lawful. She thinks that the proper ruling there was one of mootness, since Paugh was already free.
In thinking over this procedural morass, if I had a vote I’d agree with Justice McClanahan. Since Paugh used the wrong statute, he should only get the remedy that that statute affords. It’s entirely possible that part of my leaning is because of the implication of giving a gun back to someone who’s all-too-recently been suicidal, without having a judge pass on whether that’s appropriate. But lest we get too involved in hot-button political debates over the Second Amendment, . . . well, I think it’s time to wrap up this analysis now.
A HARD LOOK AT SOME PAINFUL NUMBERS
[Posted May 31, 2013] Oh, rats.
Today, I finally got a look at part of the 2012 State of the Judiciary Report. For those who, like me, actually enjoy poring over statistics to see what trends can be divined from them, this report is quite the goodie bag. It contains figures that are (or at least should be) of interest to every appellate practitioner, and plenty of trial lawyers, too. This report spells out how many petitions arrive at the justices’ door each year, and what the court does with them, at least in the aggregate.
In the past couple of years, I’ve focused on the writ-granted rate in civil cases, to see how appellants fared when seeking a writ. (In criminal cases, the news has always been bad, but now the probability of getting a writ is approaching lottery-ticket odds, as noted below.) Over that time, I’ve simply divided the number of writs granted by the numbers of writs acted upon (grants, plus refusals and procedural dismissals) to get an overall success rate. Stretching back over a couple of decades, that figure has danced around somewhat from year to year, but the long-term average is 21%.
And yet, I’ve concluded relatively recently that I should also calculate the odds of getting a writ assuming you don’t sustain a procedural dismissal. After all, an appellate lawyer should be able to eliminate the chance of a dismissal because of simple but fatal flaws like omitting assignments of error. Factoring procedural dismissals out of the equation gives a truer picture of how often the court grants a writ when it considers the “merits” of the petition.
That’s a fairly easy calculation – or at least it was, until this year. This year’s report no longer delineates between procedural dismissals and refusals; it simply lumps them into a single figure, with the agonizing notation, “Counts for Procedural Dismissal are not shown.” Rats! So much for my attempt to be more exact.
Despite this, we’ll make the best of what we have. Here are the trends that emerge from an evaluation of the most recent stats:
Fillings were down slightly overall – 2,216 last year, as compared with 2,333 in 2011. The court’s overall incoming workload was down about 5% in comparison with 2011. But this drop continues a four-year decline in petitions filed; in 2009, there were 2,639 petitions of all types filed. That’s a drop of 16% in just four years.
Civil filings remained constant at exactly 600 petitions in each year. This is one area in which the court’s caseload has, subject to annual wobbles, remained within a relatively tight range.
Criminal petitions have been falling – there were just 1,016 criminal petitions in 2012. That’s down a whopping 23% from just two years ago.
The justices are granting fewer writs than they have in even the very recent past. Here’s the overall grant rate (which includes procedural dismissals) in civil appeals for the past six years:
Note that each of these numbers is fairly close to the norm of 21%. But behold:
Now let’s compare the rate in criminal appeals. If you’re a defense lawyer, you might want to sit down and maybe pour yourself a wee dram before reading these numbers:
In other words, the Supreme Court is refusing or dismissing 59 out of every 60 criminal petitions. The justices are essentially getting out of the criminal-appeal business, giving unexpected credence to my recent tongue-in-cheek observation that the Court of Appeals is becoming, in effect, the court of last resort in Virginia for criminal appeals.
But the drop in civil writs, if it continues, signals a reduction in that docket, too. For the nine-year period from 1993-2001, the court averaged 235 writs (of all types) a year. The next nine-year stretch, going into 2010, was down noticeably, but the court still averaged 194 writs a year. In the past two years, we’ve seen 152 and 123, respectively.
What about 2013? According to the court’s website, there have been 31 writs granted this year. Today is the last day of May, so the math is easy; at this pace, we’re headed for something like 75 grants in a calendar year, a rate that would have been unthinkable just a few years ago. The bottom is dropping out of the writ market.
How does this affect you, my loyal readers? It depends on who you are.
If you win your case in the trial court, smile. The odds of your getting reversed were always small, but these days, they’re shrinking.
If you’re a prosecutor, you’re already smiling and you don't need any advice from me.
If you’re an appellant, know that you now have a tougher row to hoe. There’s no way to calculate the odds of getting a reversal in specific circumstances (for example, it’s easier when a trial judge takes away a jury verdict, and harder when the other side got the verdict and a judgment), so as they say in the advertisements, “Your results may vary.”
Now, once a writ is granted, the odds for the appellant brighten substantially. The long-term historic trend is that the court reverses, in whole or in part, 60% of the time after a grant. That being said, 2012 was the third year in a row in which the court affirmed more often than it reversed after argument on the merits. But fluctuations like that are common; if the trend is still around in another three years, I’ll start to suspect a change.
If you’re an appellate lawyer
, then, candidly, it’s becoming a lot tougher to ply your trade, unless you’re one of those lucky souls who always represent appellees. The field of appellate practice was, until very recently, a growth sector in the practice of law. This set of statistics, and its slightly older brethren, convince me that that’s no longer the case. There will always be demand for excellence, in any field of practice, so I won’t try to dissuade my pals in the appellate bar from pressing onward. But fewer petitions and fewer writs mean less work for those of us who venture to Ninth and Franklin
for our livelihood.
PRICELESS GUIDANCE, STRAIGHT FROM THE CONSUMER
[Posted May 21, 2013] The story goes that an avid fisherman, on a solo fishing vacation, walks into a sandwich shop near the waterfront one morning. He asks the cook what kind of bait the local fish bite at. The cook shrugs and says, “I’m not a fisherman; try those guys at that table,” gesturing. The vacationer approaches the table and politely repeats the question.
One of the men at the table responds, “Well, I have a few ideas, but in truth, no one around here knows these waters better than Old Charlie. He knows everything there is to know about fishing here. If you want to know what works, go ask him. He’s sitting right out there at the end of the pier.”
The vacationer eagerly makes the short walk and finds an old man lubricating a reel. “Excuse me, sir; I’m not from around here, but I’ve come to try my luck in these waters. I’ve been told that you’re the most knowledgeable fisherman around, so I hope you’ll be willing to tell me what the fish like around here.” The old man looks at him for a moment before answering, “If you really want to know what the fish like, you don't need to ask me; you need to ask the fish.”
Okay; among the stories I’ve related on this site, that’s among the more dreadful. But it illustrates an important point. Appellate lawyers like me can tell you what we think the “consumers” of our advocacy like – what kind of “bait” works with them – but in truth, there’s no substitute for getting that information straight from those consumers.
In that vein, do I ever have a deal for you! An appellate jurist and long-time friend of VANA, Judge Bob Humphreys of the Court of Appeals of Virginia, has sent me an essay that he wrote several years ago for inclusion in a book on appellate persuasion. He has very generously offered to allow me to post it here.
This insight is simply priceless. Like Old Charlie’s wry observation about the fish, we generally don't get to hear exactly what our audience likes, straight from the source. We get educated guesses from experienced practitioners, and often those guesses are aided by direct conversations we’ve had with one or more jurists. But there’s no substitute for the direct approach, unfiltered by the practitioner’s perspective.
This essay will tell you how an appellate mind works. You’ll find yourself chuckling from time to time, even as you learn. While this is just the view of one jurist, I sense that these principles are widely held in our appellate judiciary. It’s fairly long – almost the same length as one of my opinion-day efforts – but it’s well worth reading. And re-reading, for that matter.
Appellate Advocacy – Persuasion Planning and Analysis
©2005 by Robert J. Humphreys, all rights reserved. This article was previously
published in The Appellate Prosecutor: A Practical and Inspirational Guide to Appellate Advocacy, Trafford Publishing Company, 2005 and is reproduced here with the permission of the author.
Judge Robert J. Humphreys
Court of Appeals of Virginia
[Note: The views and opinions expressed herein are those of the author and do not necessarily reflect the views or opinions of other members of the Court of Appeals of Virginia or any other appellate judge.]
Judges are a lot like dogs. Individually, they can be friendly, agreeable, and dependable, but beware when they travel in packs.
Judge Richard Posner, United States Court of Appeals for the Seventh Circuit.
You are standing in a room with thirty-foot ceilings, crystal chandeliers, and the seal of your state or the United States over a long raised bench. With your peripheral vision you may note the legal themed murals or portraits of dead judges covering the walls. You gaze up at, not one, but a veritable “pack” of black-robed and stern-faced men and women. If it hasn’t sunk in before now, you realize that you are about to engage in the ultimate exercise of skill in your chosen profession. Your written and spoken words on behalf of the client you are there to represent may make, alter or erase the law in the particular area at issue. Is it any wonder that most lawyers consider appellate litigation the most intimidating aspect of the practice of law?
The appeals process is basically another manifestation of our adversary system of justice and should be approached as such. A particularly apt medical analogy is that if trial litigation is likened to surgery - appellate litigation is an autopsy. Both procedures involve many of the same tools, knowledge and skills but one is devoted to determining what, if anything, went wrong with the other.
Like the trial lawyer, the job of the appellate litigator is to persuade a neutral audience that the rule of law and perhaps even the abstract concept of justice compel a particular result. However, there are obvious differences between the trial and appellate processes as well. First, the audience you will work to persuade will be trained lawyers, instead of a lay jury. Second, the rules governing your appellate contest will be different. Nevertheless, the appeal, as the trial, is an adversarial battle that will be joined in a courtroom. To carry the military analogy a little further, it is a battle that will require intelligence, planning, and analysis. You will need to know precisely what weapons you have to fight with (the facts of your case and the applicable law) and you will need to analyze the terrain in which your battle will be fought (the judges and procedural rules of the court that will decide the victor).
Stripped to its essence, an appellate court is simply another arena in which you and your opponent are given an equal opportunity to persuade an audience. Simply put, if you are persuasive enough, you will win. If you accept that premise, then it logically follows that the process of persuasion is worthy of study. Indeed, an investment of time and effort in analyzing and planning how to best persuade your audience, under a given set of circumstances, will pay dividends – especially if your opponent doesn’t make a similar investment of time and effort. The focus of this piece is an analysis of the process of persuasion both generally and how that process applies specifically to appellate practice.
II. The Basic Building Blocks of Persuasion
What you don’t know will always hurt you.
First Law of Blissful Ignorance
Before we can get specific about the persuasion process in an appellate context, we probably should go over some basic elements of effective persuasion. These elements provide the foundation for every effective persuasive technique. This is the case whether you are preparing an appeal, trying a case to a jury, selling Girl Scout cookies, or convincing the public to elect you to office.
It is safe to assume legal doctrines that claim to be the offspring of logic are either not proud of, or not aware of, their real parents.
Felix S. Cohen, Attorney and Legal Scholar.
A.“It’s all Greek to me!”
Over 2300 years ago, the Greek philosopher, Aristotle, laid the groundwork for modern public communication in a three-part work simply entitled “Rhetoric.” Aristotle defined rhetoric as a branch of discourse centering on persuasion. In Aristotle's time, rhetoric was considered one of the two primary forms of expression. The word comes from the Greek 'rhetor', meaning "speaker in an assembly" and concerns the practice of oratory, or formal public speaking.
Rhetoric, as an avocation, may have started in the 5th century B.C.E. in response to citizens' need for help in pleading their own cases in court for the restoration of their property confiscated by the tyrant Thrasybulus (and so was born the trial lawyer).
Aristotle’s teacher, Plato, hated the way that public speakers skillfully manipulated audiences with no apparent regard for truth. Plato saw little value in the type of rhetoric used by the fast-talking speakers of his day. However, his student Aristotle saw great potential in rhetoric (the dynamics of one person addressing many). He believed it was an art form that could and should be studied and he proceeded to do so. Aristotle viewed the essence of the art of rhetoric as the ability to discern and make use the most effective means of persuasion in a particular case. He asserted in his books that all effective public presentations are some ratio of three rhetorical vehicles: ethos, pathos, and logos.
Essentially, the ethos component of rhetoric is the perception of the character of the speaker as revealed through his or her communication, or the past experience of the audience with the speaker. The pathos element represents the emotions felt by the audience during the communication. Finally, the logos aspect of rhetoric is the persuasive effect of the actual words used by the speaker.
Of the three components of rhetoric, Aristotle regarded ethos as the single most important element in the persuasive process. Ethos is more than simply your credibility as a messenger although that is certainly part of it. It is the speaker’s reputation for credibility with the audience that is important. Simply put, the more credible the audience perceives the speaker to be, the more credible the argument to those who hear it. If you take a moment to think about it, you form quite a few of your opinions based upon the level of trust you have in the person who is conveying the information upon which your opinion will be based.
Although no presenter today would speak without considering the audience, Aristotle's assertion of the importance of pathos was a novel idea in his time. His three volume work on the art of rhetoric provides the earliest record of a rhetorician identifying the audience and their emotional reaction as an important part of public speaking. In fact, he believed that a speech was effective only if it stirred up emotions in its audience. In modern parlance, pathos is simply your ability to make use of any human values in your case in a way that your audience can either sympathize or empathize with. The reality is that appellate judges are human and will find it much easier to apply the law if the result will also comport with their subjective sense of justice.
The last element of rhetoric, but unfortunately the only one seriously considered by most appellate lawyers, is logos or the logical appeal of your message. Logos is simply the power of the syllogism. You remember what a syllogism is, don’t you? All right, by way of a refresher, here is the classic example of a syllogism:
All men are mortal.
Aristotle is a man.
Therefore, Aristotle is mortal.
Alternatively, in a legal context:
A binding contract must be supported by consideration.
The agreement between Tom and Mary was not supported by consideration.
Therefore, there is no binding contract between Tom and Mary.
Whether as simplistic as the one above or more complex, ideally, the logic of your argument is inexorable and compelling because you have demonstrated to your audience that, under the standard of review, the statutes of your jurisdiction, and the applicable precedent, your interpretation of the law is the only outcome that makes any sense.
So far, we have focused on the basic persuasive elements you as the communicator must master to be effective, but up to this point we have left out of the equation the manner in which your audience will process your deathless prose and spellbinding oratory. It is time to remedy that deficiency.
B.The Thinking Process and Persuasion
To learn from your mistakes, you first must realize that you are making mistakes.
Let us start with this simple proposition:
Attitudes drive behavior. If you can change attitudes, you influence behavior.
Unlike the jury selection process available to the trial practitioner, in appellate practice you have little or no control over who your audience is going to be, but it would certainly be nice to know a bit about the people who will weigh your arguments. Who are those folks beneath the black robes? What kind of life experiences have they had? What is their judicial philosophy? What are their “hot” buttons and do I want to push them or not? What will their analytical process involve? In the course of a career of practice before these judges, you may come to learn the answers to many of these questions. However, it is the answer to the last question that may be the most important in determining how to persuade them.
Human beings think in basically one of two ways or “modes”: Systemic Mode and
Heuristic Mode. Systemic mode thinking is characterized by a careful, deliberate and analytical approach to sifting information. The mind is active. The thinker is alert and more inclined to be “process oriented” with reason dominating over emotion. By contrast, heuristic mode thinking reflects a “stream of consciousness” approach where the information is “skimmed” rather than critically analyzed. In this mode, the thinker is less likely to notice inconsistencies, factual errors and logical flaws. The thinker is not alert and inclined to be “result oriented” with emotion dominating over reason.
While one mode of thinking will tend to predominate over the other in all of us, we are all capable of thinking in both modes and we can and do switch between them. What this means in the context of appellate advocacy is that your persuasive efforts will have differing effects depending on the mode of thinking of your audience at the time your brief is read or your oral argument heard.
The thinking mode of the audience will not affect their perception of the credibility of the speaker or lack thereof (ethos), but it will affect the degree to which your audience will rely on your reputation for credibility to determine the outcome, with heuristic mode thinkers relying more on your reputation for competence and professionalism than the systemic mode thinker, who is more likely to validate your analysis with their own. However, in general terms, an appeal based upon cold facts and logical reasoning is more likely to succeed with systemic mode thinkers (Aristotle’s logos component) while an emotional appeal will likely be more successful with a heuristic mode thinker (you guessed it, pathos).
For example, if the decision to be made is whether or not to buy a new pair of sneakers, the question foremost in the mind of the systemic mode thinker might be “How much do these sneakers cost?” In contrast, the big question for the heuristic mode thinker is, “Does Michael Jordan endorse these sneakers?”
The problem you have as an appellate litigator is that you won’t know whether your masterpiece of a brief will be read by a judge right after he or she has had their morning coffee on a day when all is right with the world or will they read it at the end of a long day when that judge is tired, perhaps preoccupied with how to craft an opinion in another case or frustrated by a really bad brief that he or she finished reading just before picking up yours. Since there is no way to know the thinking modes of those in your audience at any particular point in time and assuming your position isn’t frivolous, the obvious solution is to craft an approach that effectively deals with both modes of thinking.
So how do you deal with an audience that is thinking in mixed modes? Well, like Joe Friday in the old Dragnet television series, systemic mode thinkers focus on “just the facts” and law important to resolving the legal issue. To appeal to those thinking in systemic mode, a well-written statement of facts and a well-organized brief will be key to assisting “process oriented” thinkers, so start by reminding the court of the standard of review, then apply the facts in an organized way consistent with the standard of review to the legal principles involved. At that point, if necessary, argue logical extensions of existing law to apply to those facts.
For any result oriented heuristic thinkers, emphasize the human values in your statement of facts and use cues. [The “cues” discussed here are based on the work of Robert Cialdini. See R. Cialdini, “Influence: Science and Practice”, (2nd Ed.). Scott, Foresman & Company (1980).]Remember, heuristic thinkers are looking for shortcuts to the bottom line so give them some. That is what cues are – shortcuts.
There are three cues or shortcuts that are particularly effective with heuristic thinkers in an appellate context: the “Comparison Cue,” the “Liking Cue” and the “Authority Cue.”
Have you ever wondered why television sitcoms use laugh tracks? When the laugh track is played, the studio audience assumes that what just happened is funny and laughs along (without any critical analysis about whether it actually was funny). The laugh track is simply the application of the Comparison Cue, which is shorthand for the proposition that “When others are doing it, you should too.” In an appellate context on an issue of first impression, you might use this cue by showing what other jurisdictions have done when confronted with the same issue.
Another cue that is useful with heuristic mode thinkers is the “Liking Cue.” Have you or anyone you know ever been to a Tupperware[TM] party? If so, then you know that it is virtually impossible for anyone who attends, not to buy something. Why? Because everyone who attends is presumably family, a neighbor, or a friend of the hostess and wants her party to succeed. In other words, the Liking Cue means, “When you like the source, do what is requested.” If your court likes and respects you, subconsciously at least, they would prefer to see you win as opposed to a lawyer they find obnoxious or have little professional respect for. Do not get me wrong, any such subconscious preference will not stop the systemic mode thinkers on the court from holding against you if they are convinced the law goes the other way - but even if you lose, the language in the opinion may be soft enough to give you something to work with in a future case.
The final cue important to this discussion is the “Authority Cue.” Back in the 1970’s, one of the most popular shows on television was a medical drama about a family doctor called “Marcus Welby, M.D.” in which an actor named Robert Young played the title role. Because of the show’s popularity, a pharmaceutical company produced a television advertisement for a pain reliever that opened with Young wearing a white coat and a stethoscope, announcing, “I’m not a doctor but I play one on TV….” Despite the disclaimer that he wasn’t a real doctor (and presumably incompetent to opine on any medical subject), his endorsement of the pain reliever caused sales to increase dramatically. The heuristic mode thinkers in the television audience bought the product because of the Authority Cue: “When the source is perceived as an authority (even if they really are not one), you can believe it.” Find and provide precedential or persuasive authority for your position. If you do so, you provide an easy way out for the heuristic thinkers in your audience. What are other jurisdictions doing? Is there a law professor’s treatise or law review article on the subject that shows a trend in the law you want the court to follow? The Authority Cue is also a shortcut for the impact of your reputation for credibility with the court and can make a difference in the outcome. When your audience is thinking, “If he/she says this is or ought to be the law, it must be so because he/she is always very well prepared and shoots straight with the court,” you are considerably more than halfway home.
II. Application of these Principles to the Appellate Process
Now that we have the basic building blocks of successful persuasion on the table, let’s think about how to put these pieces together to win an appeal.
Start by keeping in mind, four simple rules that will help your credibility (that ethos thing again) with both systemic and heuristic mode thinkers: 1) be prepared; 2) be accurate; 3) be clear; and 4) be brief.
You have to work with the record you have and if the case was badly tried in the court below, you may have your work cut out for you. However, if you are a government lawyer, you must also remember that you will be held to a higher professional standard by the court than your opponent. If there is clear error based on existing law, you will be expected to confess error unless you are arguing in good faith that the court should overrule the precedent that makes it error. Moreover, in a criminal case you will be held to the same heightened ethical standards as the trial prosecutor.
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be.
Justice White, concurring and dissenting, United States v.Wade, 388 U.S. 218, 256 (1967).
So how do you apply those persuasion fundamentals discussed above to the way you approach an appeal? For starters, you absolutely must thoroughly prepare your case and know and follow the rules of court. Failure to know the facts of your case and the applicable law will impact on your credibility in a very negative way. In addition, many appellate courts are sticklers for enforcing their rules and the quickest way I know of to lose in an appellate court is to either procedurally default your position or effectively waive your ability to be heard. Failure to follow the rules of court will send your credibility into a downward spiral no matter what the thinking mode of your audience. Judges have long memories so ruining your credibility with the court also means that in addition to losing that particular case, you are now more likely to lose future cases as well.
B. Persuasion Techniques and Your Brief
It is therefore ordered that the warden of the Fleet shall take said Richard Mylward … into his custody , and shall bring him into Westminster Hall on Saturday next … and there and then shall cut a hole in midst of the same engrossed replication … and put the said Mylward’s head through the same hole, and so let the same replication hang about his shoulders with the written side outward; and then, the warden shall lead the same Mylward, so hanging, bare headed and bare faced, round Westminster Hall, whilst the courts are sitting, and shall shew him at the bar of every of the three courts within the Hall.
The penalty Lord Chancellor, Thomas Egerton (1603-1617), imposed on attorney Richard Mylward for submitting a replication (brief) containing 120 pages when, in the Chancellor’s opinion, 16 would have sufficed.
In an appellate court, you always get at least one opportunity to persuade your audience. That opportunity is your brief. Depending upon the court, you may also get a second opportunity in the form of oral argument. So how might knowledge of the way your audience thinks and the rhetorical persuasion techniques discussed above be useful to you in winning the case on appeal?
Everything begins with your brief. An appellate judge must sift through hundreds of pages of briefs every week. Your target audience, therefore, wants to understand your case quickly and with as little reading as possible. In addition, let us be brutally frank about one other related matter:
If your brief doesn’t look good, you don’t look good.
Your audience consists of people who read and write for a living, so understand that small things like spelling and grammar mistakes can hurt your credibility tremendously. Such seemingly insignificant mistakes suggest that you didn’t spend a lot of time on the case and have little invested in the outcome. Use the proper font size. Shrinking the font may help you stay within the page limit but, believe it or not, your audience will not go hunting for a magnifying glass to read your legal tour de force.
Secondly, don’t just accept the issue as framed by your opponent. Frame the issue(s) in your terms based upon your theory of the case expressed in a succinct but favorable way. If you are representing the appellant, be judicious in the number of issues you raise on appeal.
Appellate courts do not give out an annual award for the “Greatest Number of Issues Presented in a Single Case.” There is a sort of Law of Diminishing Returns that applies to appeals and after three or four issues, the attention the issues presented will get and the credibility of the lawyer presenting them is inversely proportional.
Organize your brief well and use subsections to break down your arguments into more easily digestible pieces. Doing so will help you build your arguments in a coherent fashion and it will also make it easier for the systemic mode thinkers in your audience to understand precisely where you are going and how you are going to get there. This is particularly helpful if you are arguing that you should prevail under alternate legal theories.
It may seem ironic but most contentions of law are won or lost on the facts.
Justice Robert H. Jackson
There is no law that says that your brief must be dull and tedious to read. You can, and should, take the time to make it absorbing and understandable. Your statement of facts can tell an interesting and compelling story in a narrative fashion (provided your narrative is factually accurate and contains appropriate citations to the record). Try to make the judges want to rule for you. Tell the story relevant to the issue(s) accurately and in a way that puts human values on your side (if possible).
For example, applying the principle of pathos, an excerpt from your statement of facts might read “On May 7, 2003, Sally Smith, a single mother of two young children was forced from the parking lot of the restaurant into a vehicle at knifepoint by the appellant, John Walker. She had just finished an eight-hour shift as a waitress during which she waited on Walker. (T. 55-61) Walker took Sally to a nearby wooded area where he cut the clothes she wore from her body with his knife. He repeatedly had sexual intercourse and sodomized Sally at knifepoint and left her naked and crying in the woods. (T. 66-72) Sally positively identified Walker in a seven-man police lineup conducted the next day and in open court during both the preliminary hearing and trial of this case. (T.83 and T.110-111)”
Wouldn’t you rather read that than: “Sally Smith testified that she is unmarried with two children ages 5 and 7 (T.58). She further testified that she was employed as a waitress at Joe’s Crab Shack (T.59). Smith also testified that after finishing her shift on May 7, 2003, she was approached in the parking lot by a white male who she later identified as the appellant. Smith testified that the appellant displayed a knife and told her to walk to a nearby stand of trees (T62-65). Ms. Smith further testified that her assailant cut her clothes off and then held the knife in a threatening manner while he had sexual intercourse with her twice and oral sex once (T.70-72). Detective R.T. Jones testified that on May 8, 2004, Ms. Smith attended a police lineup that was conducted at the Detective Bureau and consisted of seven individuals including the defendant. (T.110). Ms. Smith identified number 4 as her assailant. Number 4 was the appellant. (T.111). Ms. Smith also identified the appellant in open court during the trial of this matter (T.83).”
Each of these statements of fact is accurate and complies with the rules of court in citing to the record but one is more interesting to read, is more likely to hold the reader’s interest and helps the reader empathize with the victim (and thus your case).
After you have framed a concise, accurate, and hopefully appealing statement of facts, a well-written analysis should follow it up. Your analysis of each issue should be cogent, easy to understand, and supported by either precedent or logical extensions of existing precedent. In doing so, remember that an appellate judge is going to be more persuaded by the rationale for a particular rule of law than by bare precedents. In other words, show the court how to rule for you. Explain your legal theory of the issue and how precedent supports it, or why existing precedent should be modified or overruled. What your analysis should not contain is stream of consciousness assertions of case law, applied to the facts without regard for context or the development of the law.
Finally, take a lesson from poor attorney Mylward: what your brief is called is what it should be – brief! The most persuasive briefs are carefully crafted to do no more and no less than: 1) recite the background facts in a compelling way (but mindful of the standard of review); 2) apply existing statutory and case law to those facts in a logical manner; and 3) if necessary, explain how existing case law must be distinguished, extended, or overruled to carry out the applicable public policy, legislative intent, or constitutional mandates. In other words, make your brief “lean and mean” and present your issues, facts and arguments with streamlined precision.
The issues can be analyzed in pages less than fifty
If plaintiffs could with thought and words endeavor to be thrifty.
Asher Rubin, California Deputy Attorney General replying in rhyme to attorneys for the plaintiff’s second request to file a brief exceeding the court’s 50-page limit.
C. Oral Argument
The acme of judicial distinction is to look a lawyer straight in the eyes for two hours and not hear a damn word he says.
Chief Justice John Marshall
I used to say that, as Solicitor General, I made three arguments in every case. First came the one that I planned as I thought – logical, coherent, complete. Second was the one actually presented – interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.
Justice Robert H. Jackson, formerly Solicitor General of the United States.
First of all, my advice is that if you get an opportunity for oral argument, don’t waive it! I am often asked if oral argument really makes any difference in the outcome of an appeal. In my experience it does - about 10% of the time. In other words, about 90% of the time, the way I vote to decide the case after oral argument is the way I was leaning after reading the briefs, the joint appendix and the applicable case law. But roughly 10% of the time, oral argument is the difference between winning and losing. In my view, that percentage is significant enough that you owe it to your client to give it your best shot if you have the chance.
Second, prepare for your argument! Re-read the briefs filed months earlier and update your research. If you find new cases on point, advise the court and opposing counsel in writing (if possible) before oral argument. This will enhance your credibility with the court and if the court finds a recent case on point that you missed, you will (or at least should) feel as bad as you will look. In the same vein, if you find a material mistake in the Statement of Facts (and mistakes do happen to the best of us), disclose it immediately to the court and opposing counsel.
Third, your time for oral argument is short. Don’t waste it on lengthy introductions or a restatement of the facts. Assume that the court has read your brief and is aware of the facts. Take advantage of the principle of primacy. Your first few minutes at the podium will be when your audience’s attention is most focused on what you say so make that prime time count. Try to grab your audience with an “attention step,” which is a 30 second or so summary of what you regard as the primary issue to be dealt with by the court. This attention step should state the main issue, convey your theme of the case, and set the stage for the argument in the way most favorable to you. For example:
Good morning; I am Tom Sweeny representing the appellant, John Smith.
This issue in this case essentially comes down to, “Does it violate the Fourth Amendment to base a pat-down search on the concept of ‘guilt by association’?”
Or, from the opposite perspective:
Good morning. I am Amy Decker representing the Commonwealth.
The issue in this case is, “Does the Fourth Amendment permit a pat-down search based on the fact that appellant was standing in close proximity to, and conversing with, a person who is armed with a firearm?”
“In other words, where one suspect is armed in an open-air drug market, is it reasonable for a police officer to suspect that his associates may be armed as well?”
Next, let the court direct the argument. During oral argument, there are basically only two reasons a judge will ask a question. The most common reason is that the court really wants your help in reasoning through the issue. You should provide that help by answering the question succinctly, honestly and forthrightly (even if the answer hurts your theory of the case). Only after answering the question directly should you explain why the question as framed does not help with the analysis or why the question presumes facts that do not exist in your case or, if you must, why the answer that hurts you demonstrates why the existing precedent should be modified or overruled.
The other reason a judge may ask a question is not because they want to know the answer; he or she thinks they already do. They ask the question so one or more of their colleagues can hear your answer. They are using you to help them persuade the other judges. So if the court asks a question, answer it immediately and directly (again, do so no matter how much a straight answer hurts). If the judge asking this type of question is already on your side, the question will be a “softball” which you should recognize and answer in a way that helps that judge persuade his or her colleagues during the decision conference. It goes without saying, but I’ll say it anyway: if you don’t know your case well enough to recognize a “softball” question when one comes at you, you may lose the judge who started off on your side.
Let go of those issues the court doesn’t want to discuss. Typically, the judges will focus oral argument on the issue or issues that will be dispositive of the appeal. So, it simply does not matter that you see this case as turning on a single tenuous issue and that you have prepared to spend your precious time arguing it. If the judges are not asking you about that issue, the opinion will not likely focus on that point and, by the way, it probably is not a problem for you.
Finally, know when to sit down. If you sense that the court is with you based on the questioning of your opponent, there may not be much you need to do except to note that the court has already raised the points you wanted to make and offer to answer any questions. When you have nowhere to go but down, stop and avoid saying something that will result in snatching defeat from the jaws of victory.
If you understand and use these persuasion principles in planning, briefing and arguing your appeals, you will not improve your chances of winning the lottery, you won’t be more popular with members of the opposite sex, or drop twenty pounds overnight. But I guarantee that you will quickly develop a reputation for competence and integrity with the appellate courts of your jurisdiction, and you will be successful in those courts far more often than if you would otherwise.
Appellate judges sit above the fray as the battle unfolds beneath.
Then, when the dust settles and the smoke clears, they descend from their lofty perches and shoot the wounded.
An anonymous trial judge.