Previous month:
June 2022
Next month:
August 2022

July 2022

Recommended reading on the science of persuasion

I recently came across an article by Prof. Kathryn M. Stanchi that I recommend to appellate lawyers and anyone else in the persuasion business: The Science of Persuasion: An Initial Exploration, 2006 Mich. St. L. Rev. 411, available on SSRN.

Stanchi starts her article by saying something that I’ve come to believe: that persuasive writers should “study the existing social-science data about human decisionmaking.” As she points out, trial lawyers have been doing that for years. But “appellate lawyers have been slow to follow theiir trial brethren in the pursuit of scientific data about what persuades people.” Instead, Stanchi says, “the study of persuasive writing has been dominated by a kind of ‘armchair psychology’—a set of conventions and practices, handed down from lawyer to lawyer, developed largely from instinct and speculation.” These conventions and practices are handed down “without analysis or critique, and without taking stock of the growing body of research from other disciplines that would provide some evidence about whether the conventional wisdom is an accurate account of human decisionmaking.”

Let me add another observation, which goes to the good people who organize appellate CLE presentations. The conventional wisdom there is to recruit as many judges as possible as speakers to say what does and doesn’t work. That’s a good idea: there’s some wisdom in asking the fish which bait is most alluring. But even the best judges will be aware of only what they consciously perceive as being persuasive; they likely won’t be aware of what works subconsciously. For that data, we need to look to sciences such as cognitive psychology.

Stanchi’s article goes on to describe several strategies for constructing legal arguments and the data supporting their effectiveness. All of that material is worth reading. My wish is that readers take to heart what she says in her introduction and—maybe—change their way of thinking about persuasion itself and how to discover ways to be better persuaders.

5th Cir. Appellate Advocacy Seminar

If you’re looking for appellate CLE in Louisiana, the Bar Association of the Fifth Federal Circuit is offering 10 hours of it, including professionalism and ethics. The BAFFC’s annual Appellate Advocacy Seminar is scheduled for October 3–4 at the Pan Am Center in New Orleans (601 Poydras Street). The first day will be heavy on writing: a two-hour writing workshop in the morning on storytelling, and a one-hour presentation in the afternoon by Tenth Circuit Judge Robert Bacharach. (If you have Judge Bacharach’s recent book, Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word, maybe he’ll autograph it for you.) The second day looks good to: it includes an opportunity in the morning to watch oral arguments at the Fifth Circuit, and an afternoon panel discussion with three Fifth Circuit judges. For more information about the seminar or to register online, follow this link.

Timeliness in federal appeal of appealable interlocutory order

A couple of weeks ago, the federal Fifth Circuit issued a judgment dismissing an appeal because of untimeliness. Ueckert v. Guerra, No. 22-40263 (5th Cir. Jue 27, 2022). It’s a cautionary tale for anyone practicing in federal court.

Generally in the federal system, only final judgments are appealable. But there are exceptions to the general rule. The Ueckert case involved one of those exceptions, the one allowing an appeal from denial of a defendant’s motion for summary judgment based on qualified immunity. At a March 2, 2021 hearing, the district court held a hearing of the motion and denied it from the bench. Two days later, a minute entry memorializing the district court’s oral order was entered on the docket. But no separate written judgment per Fed. R. Civ. P. 58 was ever filed.

Apparently the appellant thought that the 30-day time to take an appeal would not start until a Rule 58 judgment was entered. By the time the appellant filed a notice of appeal, 412 days had passed since denial of the summary-judgment motion. That turned out to be too late by 232 days. Under Fed. R. App. P. 4(a)(7)(B), the appellant could have filed a notice of appeal immediately after the orally rendered judgment without waiting for a Rule 58 judgment. And when a Rule 58 judgment is required but is never forthcoming, the 30-day time to file a notice of appeal starts 150 days after entry of the judgment or order on the civil docket. This gave the appellant 180 days after the minute entry to file a notice of appeal. See Fed. R. App. P. 4(a)(7)(a)(ii). By waiting 412 days, the appellant missed the deadline by 232 days.

There are probably a few lessons to draw from this case. One of them is to never assume that you know when the clock starts ticking on your appeal: always look up and re-read the law setting the time limit (in this case, Fed. R. App. P. 4). Another is never to assume that the rules for final judgments apply to interlocutory judgments. Note, for instance, the differences between La. Code Civ. P. arts. 1913 (final judgments) and 1914 (interlocutory judgments). When in doubt, look it up. When not in doubt, look it up anyway.