Friday, December 28, 2018


This month’s Around the ABA summarized an article by Ross Guberman who is the president of Legal Writing Pro and the author of “Point Made: How to Write Like the Nation’s Top Advocates”. After interviewing over 1,000 federal and appellate judges about dos and don'ts for writing motions and briefs, Guberman wrote the article “Judges Speaking Softly: What They Long for When They Read” that was published in the Summer 2018 issue of Litigation Journal.
The following are the dos and don’ts that Guberman settled on after he conducted his survey as summarized in the Around the ABA:

  1. Do a name check. The judges prefer words to acronyms, and one wrote, “I absolutely detest party labels (plaintiff, debtor, creditor, etc.). Name names, for God’s sake!” Another likes to see names so as not to forget who’s who.
  2. Stay classy. The judges agree briefs should show, not tell. “Avoid phrases and sentences that reflect a lack of civility. Don’t belittle the other side’s arguments but rather focus on your own strengths,” wrote one judge. Another warned that “words such as ‘clearly,’ ‘plainly,’ ‘obviously,’ ‘absurd,’… are crutches intended to prop up weak arguments that lack logical force.”
  3. “Slash windups and throat clearing.” The judges do not look fondly on long introductions, and words that “waste space” such as, “it should be noted that…” and “it is beyond doubt that….”
  4. Use graphics effectively. Timelines, maps, graphs, diagrams, tables, headings and generous margins all get a thumbs-up from the judges on the basis of clarity and as a counterweight to “dry legal analysis.”
  5. Avoid clunky legalese. The judges agreed phrases such as “for the foregoing reasons…,” “heretofore,” “aforesaid” and “to wit” “should go the way of the dodo bird.”
  6. Don’t be cloying. As much as phrases such as “defendant respectfully submits” sound respectful, the judges would rather just see “defendant contends.”
  7. Assume the judge understands the finer points of usage and write accordingly. The judges unloaded on their pet peeves, including using “impact” as a verb, improper use of “that” and “which” and misuse of the subjunctive.
  8. Explain why you should win in the introduction. The judges want to read a first page that says something like “The Court should deny Defendant’s Motion for Summary Judgment for the following three reasons.”
  9. Be succinct when citing cases. One exasperated judge opined, “Skip the long description. Just state the damn proposition, cite the damn case and be done with it.”
  10. Put citations in the text, not in the footnotes. Judges are reading your work on an iPad, and most would rather not scroll to the end to read a footnote. “This is a show-your-work gig, and I need to see your work there – not go hunting for it,” one wrote.

Friday, December 21, 2018


The Appellate Prosecutor: A Practical and Inspirational Guide to Appellate Advocacy is a book for appellate advocates. However, its nuts and bolts coverage of how to be persuasive is valuable for any attorney who will write a brief or argue before the bench. Its pointers on brief writing and argument are invaluable.

Judge Charles Moylan, thirty-year veteran of the appellate bench and renowned lecturer put it this way:

"This work in my judgment will find an indispensable place on the desk, or at the bedside on the night before argument, of every successful appellate prosecutor. "

Authors for this book are some of the best-of-the-best teachers and authorities on how to be an effective appellate advocate. They were selected from across the country and include appellate prosecutors from attorney general’s and prosecutor’s offices as well as appellate judges and justices and a law professor.
Here is what others have said about the book:

"I have been a prosecutor for 25 years, and have spent about half of that time handling writs and appeals. I thought I knew what I was doing, but in reading your book I found myself thinking many times, ‘Oh! So that's how I'm supposed to do it!’ Thanks again for publishing a great book!"
Michael D. Schwartz, Senior Deputy District Attorney
Writs, Appeals and Training Supervisor, Ventura, CA

"I have attended many appellate practice seminars. Few of those presentations were as helpful to the appellate litigator as those in this book, whose topics range from the obvious (persuasive brief writing and oral argument techniques) to the practical (books and online research resources, complete with website addresses) to the sublime (standards of review). . . . I will surely use it in my own civil appellate work and I heartily recommend it to all lawyers interested in improving theirs."
Annina Mitchell, Utah Solicitor General


· Persuasion, Planning and Analysis for Appellate Advocacy – The building blocks of persuasion and how to use them in appellate advocacy.
· Writing the Persuasive Brief – How to effectively craft the three major sections of the brief.
· The Key to Good Legal Writing.
· A Sample Appellate Brief Template.
· Appellate Strategies – How to: find procedural and other bars; uncover flaws in Appellant’s brief; determine the real issue; enhance your credibility with the court and more.
· Research Resources: An Appellate Lawyer’s Tools of the Trade – Internet sites, prosecutor association information banks and written resources for appellate prosecutors.
· Standards of Review: The First Line of Defense.
· Protecting the Record for Appeal: Advice to the Trial Prosecutor.
· Professional Responsibility on Appeal – How to respond to ethical dilemmas that confront appellate prosecutors.
· Prosecutor Appeals - Eight considerations that may influence your decision to appeal.
· Successful Appellate Oral Advocacy.
· Appellate Court Conferencing of Cases – How appellate courts
conference and how that can effect your advocacy.
· Answering the Difficult Questions from the Bench.
· Inspirational Words for the Appellate Advocate.

An example of the contents of The Appellate Prosecutor is the chapter written by Justice Paul Anderson of the Minnesota Supreme Court. In his chapter, Justice Anderson states:

“Appellate judges enjoy asking questions. It is our lifeblood. It is how we seek to understand a case, eliminate ambiguity, and test a proposed rule of law. We do not purposely think up difficult questions to put appellate advocates on the spot. Nevertheless, many of our questions are difficult to answer because we are testing or probing in an effort to solve complex legal problems. 

“Most good appellate advocates welcome difficult questions because they know that this is how they can engage in a dialogue with the court. They know that it is only through such a dialogue that they and the court can act together to explore the nuances of complex legal issues. But not all appellate advocates appreciate difficult questions; many view them as a necessary burden. Why is there this difference? Generally speaking, it can be characterized as a difference in attitude, anticipation, expectation and preparation. By using the foregoing attributes properly, an advocate is able to significantly change the dynamics of oral argument so that even the most difficult questions are welcome or at least palatable. Fortunately, some principles and practices enable an advocate to successfully field the difficult questions. What follows are a few of these principles.”

Justice Anderson’s principles, insights and points include: 
·                Entering the Dialogue: The Gift; Listen and Respond to the Question Asked and The Courteous Conversationalist

·                Preparation and Anticipation: How the Court Prepares and How the Court Views Your Case - The Three Categories

·                Answering Particular Types of Questions: The Premature Question; The Softball Question; The Stupid Question; The Nasty Hypothetical Question and Opposing Counsel's Questions

·                A Final Word About Preparation

Read Justice Anderson’s entire chapter here. If you find that chapter valuable, consider acquiring
The Appellate Prosecutor book.

Monday, October 22, 2018


If your case calls for a diagram of a floor plan or landscape or a crime scene diagram involving a landscape or floor plan or a timeline, SmartDraw is for you. It is inexpensive at $119.40 per year and easy to use with no artistic skills required. Naturally you could hire a litigation consultant to create these, but that could be expensive.

SmartDraw has a set of short video tutorials that you can watch to learn about what it will offer you.

For Creating the Floor Plan go here for the tutorial.
For Creating Landscape go here for the tutorial.
For Creating a Crime Scene Diagram go here for the tutorial.
For Creating a Timeline go here for the tutorial.

Sunday, October 21, 2018

Thursday, July 19, 2018


In 2018, Washington adopted GR37, which is a new general rule that changes how racial bias in jury selection is addressed. The rule is designed to provide courts with guidance for effectively eliminating racial bias in the use of peremptory strikes. The purpose of this article to explain GR37 and what it means for litigators and judges in Washington courts.

What is the rule and does it change the jury selection process?

GR37 outlines a process for handling concerns about racial bias in the use of peremptory strikes during jury selection. There are two key procedural components. The first deals with how the issue is raised. The rule states that a party may object to a peremptory strike on the basis of improper bias by merely citing the rule. The objection must be made before the venire member in question has been excused, unless new information is discovered. The court is also authorized to raise the objection on its own. The ensuing discussion must be held outside the presence of the venire, and the proponent must then state the reasons for the strike.
The second component provides guidance to judges on determining whether to allow the peremptory strike. Under the previous process established under Batson v. Kentucky, 476 U.S. 79 (1986), the trial court was required to find that the side exercising the peremptory had engaged in purposeful discrimination in order to invalidate the peremptory. Under GR37, the court need only find that, under the totality of circumstances, an objective observer could view race or ethnicity as a factor.  The rule defines an objective observer as someone who “is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State.”
The rule goes on to specify five non-exclusive circumstances that the trial court should consider in determining whether or not an objective observer could view race as a factor:
·      The number and types of questions posed to the prospective juror;
·      Whether the party exercising the peremptory challenge asked significantly more questions or different questions of the juror to be struck in contrast to other jurors;
·      Whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party;
·      Whether a reason might be disproportionately associated with race or ethnicity; and
·      If the party has used peremptory challenges disproportionately against a given race or ethnicity, in the present case or past cases.
GR37 also specifies a list of presumptively invalid reasons for striking a prospective juror, noting that the list contains “reasons for peremptory challenges [that historically] have been associated with improper discrimination in jury selection in Washington State . . . .” The presumptively invalid reasons are:
·      Having prior contact with law enforcement officers;
·      Expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling;
·      Having a close relationship with people who have been stopped, arrested, or convicted of a crime;
·      Living in a high-crime neighborhood;
·      Having a child outside of marriage;
·      Receiving state benefits; and
·      Not being a native English speaker.
Finally, GR37 addresses reliance on the venire member’s conduct as a reason for the peremptory strike, noting that reasons such as sleeping, inattentiveness, eye contact, general demeanor, or unintelligent or confusing answers also “have historically been associated with improper discrimination in jury selection in Washington State.” GR37 thus requires reasonable notice that an attorney intends to rely on one of these reasons so that it can be corroborated by the judge or opposing counsel.

How did GR37 come about?

GR37 was born out of the Washington State Supreme Court’s recognition that the Batson framework generally failed to achieve its designed purpose. In State v. Saintcalle, 178 Wn.2d 34 (2013), the court acknowledged “a growing body of evidence” showing that “racial discrimination remains rampant in jury selection,” including in Washington.  In multiple opinions, the Justices discussed studies of actual peremptory usage, laboratory studies, case outcomes, surveys of practitioners and judges, training materials, treatises, and investigative reports.  While finding that the trial court below had not abused its discretion under Batson, the court expressed concern that Batson focuses only on purposeful discrimination, “whereas racism is often unintentional, institutional, or unconscious.”  The court also expressed concern that under the Batson framework, judges are seemingly required to brand attorneys practicing before them as racist, and may be reluctant to do so. The court went on to discuss a variety of potential avenues for addressing the shortcomings of Batson, including abolition of peremptory strikes altogether. It concluded by highlighting the need for continuing discussion and solutions to the problem.  
Following the Saintcalle decision, the ACLU spent a period of time developing a proposed court rule. The proposal was finally submitted to the Supreme Court on July 14, 2016, followed by a comment period. Numerous stakeholders submitted comments on the proposed rule, including associations representing prosecutors, defenders, plaintiffs’ lawyers, civil defense lawyers, and judges, along with numerous minority bar associations and civil rights organizations.  Because the comments reflected disagreement among these groups, the Supreme Court convened a workgroup of these key stakeholders to meet, talk through the disagreements, and either reach consensus or crystallize and explain remaining disagreements. This work group spent approximately six months working on the issue and finally submitted its report to the Supreme Court on March 18, 2018. The report included a proposed framework with alternatives and explanatory statements from the stakeholders. The Supreme Court proceeded to adopt a final version of GR 37 on April 5, 2018, and it became effective on April 24, 2018.   

What does GR37 practically mean for litigators?

GR37 effectively lowers the burden for parties objecting to a peremptory strike for reasons of racial bias. To invalidate a peremptory, the court need only find that an objective observer could view race or ethnicity as a factor. This means that when in doubt, the justice system will now err on the side of eradicating racial bias rather than upholding a peremptory strike. The rule shifts the focus away from the subjective intent of the attorney and/or party exercising the peremptory and—much like the longstanding appearance of fairness doctrine—focuses on how an outside observer might perceive the proceedings. Notably, race or ethnicity need only be perceived as a factor, rather than the factor or a predominant factor, in the use of a challenged peremptory.
By defining an “objective observer” as someone who “is aware that implicit, institutional, and unconscious biases . . . have resulted in the unfair exclusion of potential jurors in Washington State,” GR37 broadens the traditional concept of racism and requires judges to recognize that racial bias may be at play even when its presence is not obvious or conscious—even to the attorney or party exercising the strike. In other words, it asks trial judges to dig deeper and think more critically when exploring the issue of potential racial bias.
It further suggests that attorneys need to dig deeper as well. Previously, under Batson, it was the obligation of the objecting party to establish the existence of purposeful discrimination. In contrast, GR 37 makes no mention of any evidentiary burden on either party. Once the rule has been invoked, the court is directed to determine whether or not the peremptory will be upheld based on the totality of circumstances. This suggests that whenever a genuine concern over racial bias is presented, attorneys exercising peremptory strikes should have very clear and convincing explanations for why race is not a factor in the decision to exercise the peremptory.
In a nutshell, GR 37 is to be invoked whenever there is a genuine concern that racial bias might be influencing the exercise of a peremptory strike.  Under such circumstances, the peremptory will not be allowed unless there are one or more distinct reasons for the strike that are race-neutral and persuasive, so that an objective observer could not view race as a factor. As with all court rules, GR 37 is to be interpreted and applied sensibly and in light of its underlying purposes.

Important Considerations for Attorneys and Judges

At the heart of GR37 are the questions of what constitutes racial discrimination and how to identify bias in venire members. In this respect, GR37 takes a significant step forward in recognizing the reality that modern day racism is often “beneath the surface,” and not necessarily an intentional or overt act.  
GR37 forces attorneys to rethink how they identify bias in jury selection. We are a country that is obsessed with demographics and the differences between whites and blacks, men and women, old and young, and so on. It is easy (and perhaps lazy) to look at these factors first when evaluating a venire, and many attorneys do. GR37 asks attorneys to dig deeper. Demographics are meaningful only because we often assume people of similar demographics have similar experiences, beliefs, and attitudes. But research has shown that reliance on demographics is an inaccurate shortcut littered with problems. One solution is for attorneys to shift their focus to the actual experiences, beliefs, and attitudes and forget about the demographics. There is a great deal of research in psychology that suggests experiences and beliefs are the best indicators of bias and decision-making. Consequently, attorneys should focus on these characteristics and spend time exploring how they connect to the venire members’ ability to serve in the case in question.
However, in order to accomplish a shift away from the focus on demographics, attorneys may need better jury selection conditions. Specifically, more voir dire time might be needed in order for them to dig deeper. In fact, some attorneys often rely on demographics because they have so little time to gather other meaningful information about venire members. This is something for judges to consider as part of their case management practices. A short, supplemental juror questionnaire may be another useful avenue for collecting meaningful information about venire members.
As GR 37 is implemented, concerns about variation among individual judges may also arise. Every attorney knows that judges fall all over the spectrum when it comes to personality, experience, personal beliefs, and how each of those impact a judge’s decision making. With regard to GR 37, some attorneys may have concerns that a “liberal” judge could see race as a factor more often than is warranted, while “conservative” judges are too slow to conclude that race may have been a factor. There is no easy answer to this concern, which affects the entire justice system. At the same time, judge training and appellate review could promote consistency and clarity for the new framework over time, including with regard to the scope of discretion that trial judges will be afforded. 
GR37 also provides an opportunity for judges to critically examine their own practices. GR37 provides a clear standard (the objective observer) for determining whether or not racial discrimination has occurred, including an express acknowledgment of institutional, implicit, and unconscious biases. But it is the trial judge who ultimately must determine what this hypothetical observer would know and could conclude with regard to the particular circumstances in each case. At the same time, research demonstrates that judges are not immune to the implicit, institutional, and unconscious racial biases that GR 37 highlights.[1] One might question whether or not these biases could influence judges’ own determinations of whether or not race was a factor in a peremptory strike. More broadly, this issue has significant implications about the need for further reforms to the justice system. 


GR37 is a noble step forward in the effort to tackle racial bias in jury selection. However, racism is a complex issue with no simple solutions and continuing discussion moving forward is vital. Attorneys and judges need to critically evaluate their jury selection practices and dig deeper when it comes to determining whether or not to exclude a venire member. The research suggests that, not only will this help remove racial bias from jury selection, but it will also help attorneys become more effective at identifying actual bias in the jury pool.

Thomas M. O’Toole, Ph.D. is the president of Sound Jury Consulting. Taki V. Flevaris, J.D. is a partner at Pacifica Law Group and a Faculty Affiliate at the Korematsu Center for Law and Equality. Mr. Flevaris participated in the Washington Supreme Court’s GR 37 work group on behalf of the Korematsu Center.

Originally published in the July 2018 issue of the King County Bar Association Bar Bulletin. Reprinted with permission of the King County Bar Association.

[1] See, e.g., Jeffrey J. Rachlinski & Sheri L. Johnson, Does Unconscious Racial Bias Affect Trial Judges, 84 Notre Dame L. Rev. 1195 (2009).