Six Legal Writing Tips from Antonin Scalia and Bryan Garner That Will Improve Your Brief Writing


Scalia and Garner

            Antonin Scalia and Bryan Garner’s short little handbook, Making Your Case, on persuading judges is a great asset for any lawyer.  The first half focuses on general rules of argument and brief writing, while the second is centered around oral argument. I found a ton of practical tips in here and it looks like a dipped this book in highlighter because of all the salient points I wanted to outline later—which you can obtain here (21 pages). Here are six tips on legal writing and argumentation from the first half that I found particularly useful.

Clearing the Underbrush and Making Space .

“One must . . . make space in the listener for the speech to come; and this will be done by demolishing the opponent’s case. Aristotle

This tip applies when you are the party opposing a motion, such as one for summary judgment or to compel discovery, and your opponent makes a point in the opening brief “that would entirely bypass your principal point—for example, a persuasive claim of waiver or lack of jurisdiction.” In other words, they assert an argument that would make your forgoing points moot.

To most effectively deal with this scenario, Garner and Scalia instruct that you quickly demolish this point at the outset—or clear the underbrush as they term it—before you move into your argument. This clearing process helps create space for your persuasive points, which will allow the court to be more receptive to your principal argument. They do offer a cautionary: this advice only applies to refutation of separate points that make your arguments academic—not to your opponent’s disputation of your affirmative points themselves.

The authors note that there are opponents to this view. These disagreeing experts say you should arrange your points just as the appellant did no matter what. Scalia and Garner advise against this as they have “too often seen a judge flip back to the end of the [responding] brief, looking to see whether there is any refutation of the appellant’s point that, if true—as it seemed to be—would make the [responding party’s] first point utterly academic.” So, save the judge some effort, and state that refutation at the outset, thus creating a clear space for the presentation of your points with haste.

When You Are The Responding Party, Follow Your Own Order of Argument—Usually

This tip addresses another division in academic argument regarding responsive briefs—whether you should follow the basic order of arguments used in the [opening] brief rather than developing one’s own. While the arguments might better engage the judge and be easier to follow when styled in the same order, there are two reasons not to do this: (1) there is a good possibility that the organization of the opening brief will be a mess; and (2) it is desirable to impose your own perspective on things, arranging your stronger points first and “stamping your own order upon the case.” But note, when there is not much difference between your adversary’s arrangement and your own structure, use the same order as this will improve clarity.

Less Is More: Choose Only Your Strongest Arguments

For the careful writer, the hardest thing after starting is stopping. Antonin Scalia and Bryan A. Garner

Utilizing the kitchen sink approach in asserting arguments is detrimental to your case. By arguing every point under the sun, you make the judge less inclined to believe your stronger ones by burdening him with weaker ones. In other words, you are telling the judge, “I threw in the kitchen sink because I felt that one argument could not possibly carry the weight. But, in order to prevail on a motion, all you need is one argument, and if you have that argument, which a careful investigation and analyses will likely reveal, don’t lessen its persuasive force by crowding the brief with ancillary, weak assertions.

Understand The Hierarchy Of Persuasive Authority And The Contexts That Persuade

Scalia and Garner instruct that the most persuasive authority is the case where the party situated like your client lost in the trial court but won in reversal. When you cite a case with this context, you make this implicit argument to the court: “Your Honor, if you do what my adversary is asking here, you will be reversed on appeal—just as in this other case I cite.” The next most persuasive authority is when the party situated like your client prevailed in the trial court, and the appellate court affirmed. Here, the implicit argument is: “Your Honor, if you do what I am asking here, you will be affirmed on appeal—just as in this other case I cite.” There is much persuasive force in making these implicit arguments because, as two prominent advocates point out, “[t]rial judges hate being reversed more than just about anything in the world.” David J.F. Gross & Charles F. Webber, The Power Trial Method. Be on the lookout for these persuasive situations when seeking out citations and make the consequences known, implicitly, to the judge.

Begin With The End In Mind—Themes and Theories

It is important that you, the advocate, clearly understand the overall objective of the brief and the destination you wish to reach. Scalia and Garner advise that the best way to do this is to bring out your themes and case theory early, from the question presented to the conclusion.

Briefly, a theory of a case is a logical statement of the case-as-a-whole selected by the lawyer, in light of opposing counsel’s anticipated theory. The theory should be able to be presented in the form of a series of syllogisms that establish that the desired conclusion is necessarily true, given the controlling legal principles and the presented evidence and assuming the truth of the inferences laid out.

A theme is the explanation of the facts which shows the moral force is on your side—e.g., “This is a story about a heartless insurance company that chose to prolong the agony of grieving parents by refusing to pay the amount due under the policy for which they had paid until they proved the obvious—that their son is dead.” Sargent v. Massachusetts Accident Company, 307 Mass. 246 (1940). So, a theory focuses on the logical while a theme focuses on the emotional and the moral.

Revolving your brief around these preliminary, foundational concepts help guide the court to the outcome you desire. Their urging is reminiscent of Steve Covey, a best-selling author renowned for his book The Seven Habits of Highly Successful People, and his principal “begin with the end in mind.” While he utilized this principle as a general tool to plan your life, it is useful here: To begin with the end in mind means to begin with a clear understanding of your destination. It means to know where you’re headed so that you better understand where you are now and so that the steps you take are always in the right direction. Or stated metaphorically, “If your ladder is not leaning against the right wall, every step you take gets your to the wrong place faster.” This applies equally to briefing and appreciating the objective of the brief.

You should have your case theory and theme—and the end they serve—in mind before you start briefing. This will help you avoid climbing the wrong ladder and help the judge see the motion in the larger context of the lawsuit; or as Scalia and Garner put it, “fixing in the judge’s mind ideas that may help you later on.” And after all, isn’t a lawyer just a guide who can point out landmarks and help others understand the terrain? Utilize case theories and themes to fulfill this guiding function

Use A Question Presented In Your Brief

In every sense of the word—and in all seriousness—it can be said that the most important paragraph in a brief is the first one, in which appears counsel’s formulation of the issues presented for decision. Frank E. Cooper

Scalia and Garner say that unless the rules of your court forbid stating a question presented, and they know none that do, you should do so religiously. They explain that many lawyers fail to appreciate that the result of a case rests on what the court understands the question presented to be. You want to state these question presented in a way that supports your theory of the case and leads to the outcome you want. And to do this you must find the premise that pulls the court towards your desired rule and then explicitly state that premise in your issue. But, they caution, it’s necessary you state the issue fairly. Don’t overreach. And don’t “color the issue with loaded adjectives and argumentative consequences.” The goal is to have the court decide to answer the question you pose, because, as a consequence, “it will probably reach the conclusion you urge.”

The most useful form of an issue statement is the appropriately named “deep issue.” This statement contains within it the syllogism that produces your desired conclusion. You should break up this deep issue into separate sentences totaling no more than 75 words. The first sentences follow a chronological order, providing a mini-narrative of your case. From this mini-story comes the question to be decided.

Moreover, the effect of highlighting the issues and conclusions in your own briefing process is threefold: (1) it tests the validity of those conclusions more thoroughly; (2) it ensures that you carry through with them when you get to the middle; and (3) it eliminates slag that your research has produced but that doesn’t help the analysis. Explore using a question presented at the outset of your brief to stack the deck.

Find my complete outline here!

You can pick up Scalia and Garner’s book here on Amazon.


Five Lessons From Humanistic Psychology That Will Help Facilitate Personal Growth


humanistic psychology

I’ve been a fan of humanistic psychology for a little over a year now, and this was further solidified after my recent read of Abraham Maslow’s book, “Toward a Psychology of Being.” Humanistic Psychology developed in opposition to Freudian psychoanalysis, and was designed to represent a less sexualized, negative view of human nature.  It emphasizes man’s inherent goodness and his natural drive to reach his utmost potential and live up to his own inner essence-i.e., to self-actualize.

However, the more fundamental theory of humanism has been around for much longer than humanistic psychology, which only began to take a foot hold in the 20th century. The philosophy, in some form or another, was recognized as early as in ancient Greece, when Plato stressed the importance of man’s need to fulfill his nature, and realize his capacities and power as a human being. Humanistic traditions were also recognized during the Renaissance in opposition to the prevailing Christian religiosity of the Middle Ages.

Humanism stood in stark contrast to Christianity at the time, which sounded in themes of the worthlessness of man and his insignificance in relation to the supernatural world. It, instead, celebrated the works of human genius and identified the power of human reason to know truths and achieve capacity. The humanistic psychology of the 20th century aligns with these long-standing values and provides just as much valuable wisdom for individuals today as it did hundreds of years ago. Here are five lessons from two of its largest 20th century proponents: Abraham Maslow and Carl Rogers:

  1. Every act against our own inner nature has a consequence to our psyche.

In each moment, we can choose to act in a way that is self-preserving, beneficial, or detrimental and negative. The totality of all these decisions has an irreparable effect, be it positive or negative, on our psychological well-being. Stated differently, there is no stagnation in life, you are either moving towards or away self-actualization with every decision. Choose wisely.

  1. Man must be True to his inner nature.

“[T]o will to be that self which one truly is, is indeed, the opposite of despair, and this choice is the deepest responsibility of man.” Carl Rogers

This principle recognizes the importance in making decisions that are in accord with most truly enjoy. As we grow older, society and other people begin impose their values upon us. This leads to enculturation, the acquisition of characteristics and norms of a culture, and to us forgetting the little things that truly make us happy—often realized during our early childhood. Maslow calls these forgotten gems our inner subjective delights. And it is the ability to recapture these delights, resist enculturation, and act in a way that is truly satisfying to our inner nature, that allows for self-actualization and fulfillment. When faced with a decision, think back to how your inner child might act, unconstrained by social norms, and act with spontaneity in order to decide which action would truly make you happy.

  1. A focus on ultimate aloneness and the self-responsibility that comes with that realization.

With humanistic psychology’s intense focus on self-actualization and maximizing your potential comes a simple realization: you, and you alone, are in charge of your life. We, as humans, must be comfortable with this fact and embrace this ultimate aloneness. The concepts of decision, of responsibility, of choice, of self-creation, all depend on us. But with this realization, we can reach our full potential because we become more self-directed and less reliant on external sources and the environment.

We begin to embrace the fact that satisfaction comes from within, and that our inner capacities constitute the wellspring of joy. Along with internal fulfillment comes a powerful, creative force within, allowing us to readily take advantage of peak experiences—commonly called flow. Flow is a high-level of functioning that is immensely gratifying and productive, and embracing our autonomy and aloneness is the first step in accessing this experience. With this aloneness we also can reach our inner depths, which is actually frightening, as it reveals existential problems like death and the meaning of life. But these depths, as scary as they may be, are also the source of all man’s joys, his ability to play, to love, to laugh, and most importantly, to be creative.

  1. The Intrinsic and Rewarding Nature of Growth and a Shift Away From Valuing Outcomes

This principle is reminiscent of the ancient concept that we are not entitled to the fruits of our action, only the action itself. But it goes a step further: we, as self-actualizing humans, have the inherent capability to enjoy the action as a growth-experience. When we act in accord with our inner nature and engage in our subjective delights, action transforms into growth. Thus, the steady increase of knowledge on a topic, a profession, a person is satisfying even though no end-goal is reach. And eventually, every activity that is designed to bring us further to an end-goal turns into an end goal in itself. This is not a stoic prescription to do the work because work is what humans do, it is a prescription to enjoy the work because it is characteristic of self-actualizing and growth.

  1. The Value of Acquiring Knowledge to Simultaneously Reduce Fear and Then Facilitate Growth

Maslow explains children frequently reduce their own fear and anxiety by gaining a better understanding of whatever is feared. The ferocious-looking, loud dog sheds its aura of dangerousness when it gently licks your hand; the homeless individual on the corner, begging for money, unkempt and dirty, is no longer frightening when you speak with him and understand his tragedy and suffering. We can engage in the same process as adults. Knowledge about an intimidating topic or situation at school or work helps reduce anxiety in the individual; this, in turn, leaves the person emboldened and courageous to explore new areas that were inaccessible because of fear. What follows? Growth. Thus, don’t shy away from a situation because it is intimidating and difficult, acquire information about it, seek advice, and then act.

 

 

 

 


The Value of Citing Secondary Sources in Law Practice


Click here for an outline of Thinking like a Lawyer by Fredrick Schauer for a more comprehensive discussion on legal secondary sources.

I love secondary sources.  As many of my friends in law school know/remember, I was borderline obsessed with hornbooks, treatises, and supplements–as an earlier post my reveal–during my first year in law school.  Thus, to no surprise, I have not been gun-shy about grasping for a treatise when looking for a citation. And with my very own Law Review Comment finding its way in the United States Supreme Court and California Supreme Court Briefings, I’ve started to really think about the value of citing secondary authorities.

Now, we all remember from our first year of legal writing that secondary sources are low on the totem pole of authority, being merely persuasive, and less persuasive than out-of-circuit opinions and other non-binding sources.  But can it be true that all treatises, law review articles, and practice guides are created equal?  Or is their a pecking order within secondary sources? Should we rely on the persuasiveness of the reasoning?  Or the learnedness of the source?  I’ve run across some interesting perspectives on secondary sources that address these issues.

First, it’s worth noting that many times the value of a secondary source doesn’t come from its content, but from the sheer fact that the proposition you are supporting is more plausible because someone has said it before.  As Fredrick Schauer (Thinking like a Lawyer), a professor at Virginia School of Law, explains, the judge is persuaded “not so much by the expert’s reasons as by the (judge’s inexpert evaluation of the) expert’s expertise.”  In other words, the judge merely looks at this source as a confirmation of the fact that the source is more likely right than the judge would be if she made her own decision.  The more expert the individual relied upon, the better, especially when it has become common practice for lawyers to rely on a certain treatise—think Rutter Guide in California.

Bryan Garner and Antonin Scalia in “Making Your Case: The Art of Persuading Judges” also agree with the notion that form is more important than substance when it comes to citing secondary sources. They state: Judges will “be persuaded not by the reasoning of your secondary authority but only by the fact that its author agrees with you.” They also advise writers to cite authors most eminent in their respective field, as “the force of the persuasion will vary directly with the prominence of the author.” Garner and Scalia also proceed to derogate the citation of student comments—like my own—unless they are cited because the student comment provides a collection of cases in the applicable area of law.

In sum, there is value in secondary authorities, but intensive focus on the reasoning of that authority or an all-out-search for the perfect proposition stated with the utmost eloquence and absolute coherence is unnecessary; if the author agrees with your conclusion or proposition, that is enough. Professor Schauer instructs that this reflects the law’s intrinsic conservatism, in the non-political sense of the word, and is consistent wit the authoritative character of the law itself. But theory aside, the overall point is clear: it is its very existence that gives a secondary source its value, i.e., the fact that someone has made the same argument before, not its substantive reasoning.

And as a cautionary, no matter how learned the author of the treatise is, or how well-regarded it is by the Supreme Court, Garner and Scalia state that “It’s superfluous—and hence harmful—to cite a secondary authority for a proposition clearly established by governing authority.”


Legal Writing Ideas: The Equity Case-Theme Formulation


Legal Writing

The concept of equity is a familiar concept in legal theory, education, and practice. It conjures up ideas of fairness, equality, or maybe dread, if it reminds you of your 1L contracts course where the concept carries its own distinct set of remedies. But what many people don’t know is that equity finds its origin in one of the most famous philosophers in the Western World: Aristotle. He originally developed the concept for situations where the law, because of its overbearing generality, was not well fitted for present circumstances. Thus, it could be used to rectify the law in a way the enacting legislative body would have had they been aware of the circumstances. As equity jurisprudence progressed in England, it continuously gave the judge an opportunity to do individual justice when the law could not or had not. This led one English Jurist to proclaim: “in some cases it is necessary to leave the words of the law, and to follow what reason and justice requireth . . . that is to say, to temper and mitigate the rigor of the law.”

However, over time, equity simple became its own body of law (often with separate courts) charged with adjudicating particularized subjects and remedies.” This, characterized by Fredrick Schauer in his book Thinking Like a Lawyer, as the “de-equitization of equity”, disempowered equity of its free-standing ability to right wrongs and dole out justice when the law seemed unfair. And with the eventual merging of the equity courts in the United States with regular courts of law, the concept became a far cry from what Aristotle had envisioned. It was simply another legal concept constricted by doctrine, legal rules, and precedent.

Still, Schauer explains that “the hold of the idea of equity has by no means been lost,” as it still serves as a subtle reminder of the ability judges have to act according to their conscience. Indeed, Bryan Garner and Antonin Scalia make this point explicit in their terrific book, Making Your Case: The Art of Persuading Judges, and it is to their recommendation that I now turn.

In essence, Garner and Scalia advise that when you must rely on fairness to modify the strict application of the law, you should pinpoint some jurisprudential maxim that supports your position. These maxims, venerable propositions sounding in fairness, justice, and reason, are mostly derived from equity practice, and still serve a persuasive purpose according to the duo. They include a couple examples in the text:

  • “No one can take advantage of his own wrong”;
  • “Acquiescence in error takes away the right of objecting to it”; and
  • “He who takes the benefit must bear the burden.”

Some states, including California, have even codified these maxims so as to provide explicit statutory support for your position, and “you can almost always find one to support a defensible position,” the authors write.

I would take the utility of these maxims a step further; that is, beyond using them to support a single principle, inference, or conclusion. I believe it would be worthwhile to ground the entire theme (or at least a theme) of your case in one of these equitable maxims.

Case themes are exceedingly crucial in the litigation context, as they serve as points of emphasis and reinforcement with respect to important parts of the case. They permit counsel to construct a compelling story of what the evidence in the case shows, and help establish why the other side is responsible for what happened and why your client is not. I think various maxims of equity scattered across the legal realm are especially apt for serving as case themes because of their simplicity and common-sense appeal; who wouldn’t want to find against a person with unclean hands who is now attempting to receive compensation?

So, go out and search the now defunct realm of equity for these maxims—synonymous with the rule of law, justice, and fairness—and use them as a starting point for a case theme, theory of the case, or just a proposition you are asserting. It will hopefully shape your thinking and reasoning in a way that furthers justice and fairness, as well as give the judge a more conscientious reason to rule in your favor.

For another post about legal writing check out my post here: Point Made

 


Name That Product: Almond Milk or ???


Almond Milk
Almond Milk

The Natural vs. Natural Flavors

Food labeling unquestionably influences our purchasing decisions. Whether the persuasion is due to descriptive labels, such as organic and natural, or something more substantive, e.g., milk, labeling has a substantial impact on consumer spending.

Recently, the use of the label “milk” is causing a stir amongst certain special interest groups. The controversy hinges on the ability of plant-based dairy substitute manufacturers (almond milk, soy cheese, coconut yogurt) to label their products as milk, cheese, and yogurt—as opposed to something more abstract and possibly more apt (Liquid-Nut-Derivative, perhaps?). This labeling practice has been permitted for years, but there may be a change on the horizon with a proposed legislative Bill.

In January, 2017, Congress introduced the DAIRY PRIDE ACT (Defending Against Imitations and Replacements of Yogurt, milk, and cheese to Promote Regular Intake of Dairy Everyday Act).  This bill would amend the Federal Food, Drug, and Cosmetic Act (FDCA) to consider any food mislabeled “if it uses a market name for a dairy product . . . and the food does not meet the criterion for being a dairy product.”  The criterion for a dairy product is set forth in federal regulation 21 CFR 131.110 as the lacteal secretion, practically free from colustrum, obtained by the complete milking of one or more healthy cows.”  I’m not a food chemist, but I’m pretty sure that almonds, macadamias, and soy do not come from the lacteal secretion of a cow.  Thus, if this Bill is passed, any product labeled as almond milk would be considered misbranded, and prompt food manufacturers to drop the label lest they subject themselves to legal penalties.  And this enactment will fulfill its purpose in preventing plant-based dairy substitute manufactures from profiting off the “milk name.”

But whether this labeling change will actually make a sizable difference in consumer spending is unknown.  If I had to speculate, I would predict that a less informed consumer who relies less on the substance of the food and more on the labeling authority might be swayed, as the beverage will now carry a foreign label and not the all-so-familiar “milk” title.  However, I don’t believe the informed consumer will be deterred, as the value of Almond Milk comes from it being a dairy substitute, and its mere designation as something non-milk won’t change that.

In any event, special interest groups have fired back in response to this Bill, encouraging people to voice their opposition to DAIRY PRIDE. These groups make a normative argument: labeling these products as “milk” is a long-standing practice that has achieved a vital place in our society—as the government has incorporated the term soymilk, for example, into its regulations and nutritional assistance programs—and effecting a substantial labeling overhaul would be unnecessary.  There has also recent been litigation surrounding this issue, with one class-action Plaintiff asserting that the labeling misleads the consumer into believing the plant-based milk is nutritionally equivalent or better than cow’s milk.

This controversy ultimately warrants a further inquiry into the similarities between plant-based milk and regular milk, and whether plant-based milk can in good faith be labeled as milk in the first place. Many of these “milks” have caught fire in the past for including various emulsifiers, natural flavors (not even close to what they seem), thickening agents, and other food-processing aids that are harmful.  For example, many almond milks and other plant-based substitutes contain carageenan, which can harm our gut-lining as well as trigger an inflammatory immune response similar to that your body has when invaded by pathogens.[1]   The utility of carageenan and similar chemical constituents comes from its food-thickening character, which allows us to feel like we aren’t just drinking almond infused with water. Unforuntately, this is exactly what we’re doing when we consume almond milk, which brings me to my next point.

One source estimates that an entire carton or jug of almond milk contains roughly 39 cents worth of almonds.  If this estimate is correct, consumers are paying $3.99 or more for filtered water, additives and preservatives, like carageenan, with a couple of almonds spliced in for good measure.  There is also the broader ecological concern with consuming almond milk when it’s estimated that a mere 16 almonds requires 15.3 gallons of water.

Now, environmental issues aside, I personally don’t have an issue with this apparent rip-off.  As long as I avoid the brands with carageenan, I’m happy paying $3.99 for some watered down almond-liquid, as I believe it’s a better alternative to dairy or other beverages I would make my smoothies with.  But should a processed beverage that is essentially preservative-infused water be characterized as “milk”?  This question may require a broader inquiry into our society’s conception of milk so that our expectations aren’t being undermined, but a common-sense approach would answer this question in the negative, I think.  Milk has a long-standing role in our society and has been considered a nutritional pillar in the household.  Could labeling a product that is categorically dissimilar to this dietary staple mislead consumers into believing the health benefits are similar ?  Could this lead to additional uncharacteristic labeling efforts by unscrupulous food-manufacturers in today’s day-and-age when there are exceedingly complex advances in food technology?  I think these are important questions that deserve attention when Congress votes on the DAIRY PRIDE ACT.

Additionally, I’m interested in the economical effect a labeling change could have on consumer purchasing and the plant-based alternative industry—currently a $1.4 billion market.  But whether this bill will get passed and, more importantly, whether the FDA will vigorously enforce the amendment is still up in the air.  Until then, enjoy your plant-based milks but keep in mind that our almond cheeses, coconut yogurts, and soy ice creams may carry a very different label in the future.

[1] https://wellnessmama.com/2925/what-is-carrageenan; https://www.drweil.com/diet-nutrition/food-safety/is-carrageenan-safe/ (“exposure to carageenan causes inflammation.”)


Recent Citations to my Law Review Article in Supreme Court Briefings


My 2016 law review article about the Private Attorney General Act, a hotly contested California Labor Law Statute, was recently cited in a smattering of briefs, all on appeal at the California Supreme Court and United States Supreme Court.  Check out the citations below, along with the article.

The Private Attorney General Act- How to Manage the Unmanageable

Taguilug v. Bloomingdales Amicus Brief

Lubin v. Wackinhut Amicus Brief Amicus Brief

Bloomingdale v. Vitolo Amicus Brief Amicus Brief

Anyone who publishes a law review article is concerned with whether or not anyone will read it.  I am ecstatic that my article has been valuable at not only a theoretical level–e.g., cited in other law review articles or treatises–but on a very practical level–e.g., briefs in the Supreme Court.  The notion that such an article could help change the law in any area is both motivating and fulfilling–even though it is likely either of the high court’s here will grant cert.  Nonetheless, writing law review articles are a great way to propel yourself, personally, into an area of the law and I think it is definitely worth it to spend the time writing one, especially in law school.

 


A Black Swan Inspired Theory of the Case


When I was a summer associate after my 1L year, all the way back in 2014, I was called into the National Co-Chair’s office for an assignment. After informing me that he’d taken a new case, he explained that there are three fundamental concepts that a lawyer must determine, yet constantly hone and redevelop, at the start of each litigation: strategy, tactics, and theory of the case. The last concept is my focus today.

            This familiar idea, constantly revolving around the litigation process, is simple, yet difficult to pinpoint in any exactitude. While there is much commentary in law reviews, legal journals, and the web on the concept, I had not delved into it rigorously, or really understood it well, until it was explained thoroughly in the book Successful Civil Litigation by George Vetter. It was only upon reading Vetter’s book that I realized its importance and how it may be achieved. However, it was only after reading Black Swan by Nassim Nicholas Taleb that I understood why.

The Theory Explained

            Before I explain the reasons why the theory of the case is successful in litigation and at trial, its important to understand exactly what the theory is and how it is achieved

            The theory of the case is simply a detailed, coherent, accurate story of what occurred, and it should tell your client’s story logically, and in a concise manner. Once correctly constructed, it will help communicate a compelling story to potential jurors. And it is this story that will nudge the jury to accept one party’s portrayal of various disputed inferences—based on undisputed facts—so that a favorable result is reached.

George Vetter’s six hallmarks of a “Winning Theory”:

  1. It must have a firm foundation in strong facts and allow fair inferences to be drawn from the facts;
  2. The theory should be built around the so-called high cards of litigation, incontestable or virtually incontestable facts, such as self-certifying documents, patently undoctored pictures, admissions against interest, the testimony of independent witnesses, clear scientific facts, and so on. The principle behind this rule: the jury reconstructs what happened from the evidence. Often the evidence is in sharp conflict. Naturally, then, the jury will seize upon the facts that seem fixed and certain and true. These facts then serve three functions. They, themselves, become part of the foundation for the jury’s reconstruction. They become the means by which the jury tests other facts and inferences. And they become the basis for the inferences;
  3. The theory should not be inconsistent with, or fly in the face of, incontestable facts;
  4.  The theory should explain away in a plausible manner as many unfavorable facts as it can;
  5. The theory should be down-to-earth and have a common-sense appeal. It must be readily acceptable by a jury; and
  6. The theory cannot be based on wishful thinking about any phase of the case.

            Thus, a theory with these components serves evidentiary functions, discredits and explains away the opposing sides telling of the facts, and allows the jury to follow along so that a logical result is reached. It is this last function that I find interesting: why does a logical narrative play such a dynamic role in persuading the jury; if the evidence is there, the burdens are met, why do we need simplicity, narrativity, and logical story-telling to reach the conclusion? This is where Taleb’s concept comes into play.

Nicholas Nassim Taleb’s Narrative Fallacy

               The Narrative Fallacy concerns our susceptibility to overinterpretation and our preference for compact stories over raw truths. Our preference for narrativity effectively distorts our perception of the world, and this becomes particularly problematic when ascertaining and understanding events—in his book, Taleb was chiefly concerned with Black Swan events, which are unpredictable occurrences with enormous consequences that are inappropriately rationalized after the fact.

            Narrativity does this by integrating facts into a logical link, or an arrow of relationship. And while this appears useful, it becomes a problem when organizing facts this way increases our impression of understanding and simplifies the world, thus skewing our perception of Black Swans and events of wild uncertainty. Here is a simple example of the fallacy from the book:

            If I asked you how many cases of lung cancer are likely to take place in the country, you would supply some number, say half a million. Now, if instead I asked you many cases of lung cancer are likely to take place because of smoking, odds are that you would give me a much higher number (I would guess more than twice as high). Adding the because makes these matters far more plausible, and far more likely.

            Thus, adding causality to the equation and crafting a narrative can unjustifiably affect our understanding of facts. But for my purposes, in explaining the theory of the case, the narrative fallacy is an excellent tool of which to take advantage.

            Weaving together facts and conveying an arrow of relationship in litigation is critical because it not only makes the facts more memorable but also helps them make more sense. Taleb explains a few neurochemical and psychological reasons for why human organize information in this way, but, fundamentally, it has to do with retrieving and storing new information in our mind: “the more orderly, less random, patterned and narratized a series of words or symbols, the easier it is to store that series in one’s mind or jot it down in a book.” Therefore, narrativity helps us store information in a memorable way.

            Another interesting side-effect of the narrative fallacy is that once a narrative is established, our minds work activity to solidify that narrative. We tend to more generously remember those facts from our past that fit our narrative, “while we tend to neglect others that do not appear to play a causal role in that narrative.” We revise these causative narratives involuntarily and unconsciously and re-narrate in a way that conforms with the already-established narrative.

            Accordingly, one party’s production of the best evidence, the most effective direct and cross examinations, and the greatest demonstrations at trial may not play that persuasive of a role, so long as the opposition tells a more compelling causal narrative that explains how the events occurred in a logical and plausible matter. And once that narrative is established, the judge and jury will constantly find facts and evidence that support that narrative, and do away with those that don’t. In other words, trial may over before all the evidence even comes if during Opening Statements one party establishes the type of narrative Taleb highlights.

            Taleb provides a method for side-stepping the ills of the narrative fallacy, which is to “favor experimentation over storytelling, experience over history, and clinical knowledge over theories.” But when advocating your theory of the case, flip those prescriptions on their head and create the most plausible, logical, arrow-like narrative you can. The judge and jury will be at the mercy of their cognitive predilection for narrativity, and you will be well on your way to litigation success.

 


Becoming a Craftsman: A Book Review and Analysis of “So Good They Can’t Ignore You” by Cal Newport


So Good They Can't Ignore You

A constant theme on my blog posts is skill development as it pertains to your professional career. Two book reviews in harmony with that theme were “Deep Work,” by Cal Newport, and “Peak” by Anders Ericsson. Those two books are intertwined with the book I’m reviewing today, and while the former writings provide the detailed methods for obtaining a satisfactory career, “So Good They Can’t Ignore You” provides the blueprint.[1]

Peak and Deep Work dealt with the ways we develop Career Capital, which is defined as a description of the skills you have that are rare and valuable to the working world. So Good is the book that develops what Career Capital is and why it is so important to achieving a compelling career. But before I delve in the details, I’ll entertain one of the primary refutations in this book: the fallacy of the pursue your passion mindset—i.e., picking your passion and then developing a career around that passion.

Steve Jobs popularized this career-guiding framework during his 2005 Stanford Commencement Speech. Newport says this advice has everything backwards: you must first create skills that are rare and valuable, and it is from acquiring these skills that passion follows. Moreover, follow your passion advice can be harmful because you set such a high standard for yourself—inevitably an unattainable one. The focus is on what the world can do for you, not what you can do for the world. And this mode of thinking neglects developing rare and valuable skills, which is the ultimate good here.

The alternate mode is the Craftsman mindset. The logical chain of the Craftsman mindset is as follows: (1) You develop career capital through deep work and deliberate practice; (2) you use this career capital to acquire valuable and deserving traits, such as autonomy, control, and mission; and (3) as an outgrowth of this progression, you become passionate towards a mission, and find ways to expand your mission in new ways.

So first, the Craftsman focuses not on passion, but on honing rare and valuable skills to produce Career Capital. I believe it’s important to not only work relentlessly to develop your rare and valuable skills, but also in choosing which skills to develop. In Law and many other professions, I believe it’s common that individuals end up focusing on the non-crucial aspects of their job, while neglecting what is lofty and likely to lead to success. I have fallen victim to this as well, as I enjoy reading about legal topics that are rather obscure and not directly relevant to my area of law.

Thus, to pinpoint the most salient areas for development, Newport asks a basic question: What must you understand in your field to develop the necessary Career Capital. For Newport, he believed understanding his field’s (computer science) most difficult results would be a good first step towards revitalizing his career capital stores. In my case, taking Employment law as the field, a good place to start would be reconstructing, analyzing, and comprehending the most utilized statutes in my arena. This would entail rigorous understanding of, and painstaking detail to , statutes like the Fair Employment and Housing Act (FEHA), or the Labor Code. This might consist of reading the corresponding legislative history, poring through the authoritative commentary, and understanding the statutory construction of my targets. Another Career Capital building technique Newport introduces is the Research Bible: Once a week, requiring yourself to summarize in your bible a paper you think might be relevant to your research or area of study.[2]            After you’ve developed some career capital, this is when you can cash them in for valuable traits. The main traits Newport glamorizes are Control and Mission. Control is vital because it increases individual’s happiness, engagement, and sense of fulfillment. With these underlying needs met, one can only imagine how much easier it is to continually develop your skills, thus acquiring more career capital for even better traits.

But there are, as Newport mentions, “Control Traps” for the unwary. This includes taking on too much control before you have enough career capital. This is unsustainable and should be avoided at all costs. To side-step this trap, Newport introduces the Law of Financial Viability: when deciding whether to follow an appealing pursuit that will introduce more control into your work life, seek evidence of whether people are willing to pay for it. If you find this evidence, continue; if not, move on.

With control and your career capital stores replete, you can start developing your Mission. Mission is so important because it provides a unifying goal for your career—something lofty, deeper, meaningful. Newport explains that for mission to come about, once must reach the cutting edge of their field, which requires focusing on a narrow collection of topics for a potentially long time. Once on this precipice, your mission will reveal itself to you. It is often the result of combining various ideas, concepts, principles you’ve stumbled upon, and then meshing them together to create something novel.

With your mission in place, you must work to maintain this mission. There are two primary ways to do this: (1) Utilizing the Law of Remarkability; and (2) Making Little Bets. The Law of Remarkability is satisfied if your mission is remarkable in the literal sense of compelling people to remark about it, and if it has the ability to be spread in a venue that supports these remarks. In other words, produce work in a community that is well respected and highly visible. One example of this in the Legal field would be publishing an article showcasing your talent in a highly respected legal journal or highly-read magazine. This could be a publication like Los Angele’s Daily Journal or a Law Review Journal (while I know many of these journals have caught fire in the past for being read at extremely low rates, your ability to market this journal and publicize it yourself can help the spreading of your work). For the sake of brevity, I’ll skip out on the more self-explanatory little bets technique (for more detail on this download my outline).

Now that you have your mission, the career capital and traits to maintain that mission, and the techniques to continuously further and expand that mission, passion will inevitably follow: You will be so good they can’t ignore you.

 

Cal Newport is a professor of Computer Science at Georgetown and is easily one of my favorite authors. I highly encourage anyone starting out, or looking to advance, in a career to check this book out as I believe it provides the blueprint and structure for a successful purpose in your career. Also, download my outline for further principles, definitions of concepts, and examples. Find the Book on Amazon here: So Good They Can’t Ignore You

Outline: So Good They Can’t Ignore You

 

 

 

 

 

 

[1] However, this isn’t to say So Good They Can’t Ignore You doesn’t offer valuable methodology tips as well.

 

[2] I also introduce a few more career capital building techniques in my outline attached, and refer to my articles on Deep Work and Deliberate Practice as they represent vital abilities and techniques sufficient to build career capital.

 


Peak: Secrets from the New Science of Expertise–Book Review


deliberate practice peak anders ericsson

Click here for my Personal Outline for Peak

Everyone wants to be at the top of their profession and field, but how do we get there? The main premise of Peak, by Anders Ericsson, is that you need to not only practice, but also practice the right way–i.e., deliberate practice.

Thus, people don’t just get better with ordinary practice or through working in a typical, unimpressive fashion. Even many years of experience one has accumulated performing a skill or practicing a profession does not guarantee expertise. Eriscson provides numerous examples of disciplines where professionals, over many years of workmanship, not only remain stagnant in their professional growth, but actually regress. The book advances the notion that you must take purposeful action to become an “expert” or to reach your peak. And this book provides, in theoretical and empirical fashion, the method one must accomplish to become an expert: deliberate practice.

For the average professional or hobbyist in any skill, this book is a goldmine of tips and recommendations on how to improve your craft. The book is incredibly encouraging for those who take a “growth mind-set approach”; that is, those who believe our abilities are not fixed but subject to indeterminable growth, which is dependent on various factors. One important factor is explicated in Peak, and that is deliberate practice. Although hearing about the elements of deliberate practice at this point may be tiresome —as the concept has been popularized by Malcolm Gladwell’s book Outliers, and more accurately explained by others such as Cal Newport in So Good They Can’t Ignore You—I’ll restate them once again:

  1. Deliberate practice takes place outside of one’s comfort zone; that is, it shouldn’t be enjoyable, you should strain yourself when practicing;
  2. Deliberate practice involves well-defined goals, not just a desire to effectuate vague overall improvement, such as becoming a better tennis player. Instead, you should focus on a narrowed goal, like improve my down-the-line backhand by trying to guide the ball to the upper portion of the opposite court;
  3. Deliberate practice requires full conscious and attention (One could characterize this as Deep Work—a theory set forth in Cal Newport’s book of the same name). You can’t merely practice with a Facebook tab open and while checking your Iphone every 5 minutes; and
  4. Deliberate practice involves feedback and modification of efforts in response to that feedback. In other words, do not go about deliberate practice alone; have a mentor or teacher that can critique your performance.

This post wouldn’t be complete without a reference to the law. However, many of the elements of deliberate practice don’t directly apply to Law practice, like they do to practicing the piano, playing chess, and flying a plane. Fortunately, there are areas within Law, primarily writing, that allow you to implement the elements. Ericsson details Ben Franklin’s attempt to become a better writer to explain how one can apply the elements.

Franklin simply found various articles he thought exemplified adept writing abilities and copied them. But he didn’t just transcribe the articles after reading them, simplistically looking at the words he tried to emulate; he would read the article and then only note what was necessary to help him remember the ideas and main points of the article. He would then put the article away, and try to emulate the article’s prose and logical structure based on what he had read and the sparse reminders he provided. The result: Ben Franklin became one of the most prolific writers of his time. Erickson believes many of the principles Ben Franklin implemented to become a better writer are part-and-parcel with his elements of deliberate practice.

While I haven’t directly applied the elements to my legal practice (notwithstanding a haphazard attempt during bar studies), I realized I have been unknowingly applying another principle in the book—mental representations. Mental representations are defined by Erickson as: “a mental structure that corresponds to an object, an idea, a collection of information, or anything else, concrete or abstract, that the brain is thinking about.” Erickson proclaims that it is these mental structures that allow performers to outclass their competition because they improve your ability to assimilate new information.

Throughout the last year or so, I have made it a concerted effort to have an eclectic understanding of the law. To do so, I try and read a wide range of legal materials, ranging from traditional legal opinions, to philosophy that provides the underpinnings of argument, and to literature regarding the constitution. What I’ve learned is that in a single area of practice you see many of the same concepts—or parallel concepts—and similar applications of those concepts over and over again. So, my intent in reading this diverse literature is to create effective mental representations so that when I see a concept I’ve been informed upon in the past, I can hone in on it and assimilate the new information effectively. For example, say I’m reading a legal opinion in the area of Employment law and I come across a distinct form of statutory construction that court is discussing, let’s say Expressio unius est exclusio alterius (“the express mention of one thing excludes all others”). Because I’ve read about this concept, or least seen it before in a law review article on something totally unrelated, I can now assimilate the new information with a greater sense of familiarity. I can compare this new situation where the concept appears to the previous ones, and all of this, I posit, increases my comprehension and understanding of whatever I’m presently learning.

Erickson also does a tremendous job of dispelling the notion that some individuals have natural talent, which explains why they’re expert performers. While some people are more physically predisposed to certain activities—think Shaq—the real reason the vast majority of experts have been able to excel is because they have all engaged in Deliberate Practice. Erickson supports this with empirical data and I found his argument pretty convincing. But this doesn’t presuppose that it’s easy to become an expert. Deliberate practice is incredibly rigorous and not enjoyable. You must strain through your practice and when developing your mental representations. Only then, will you reach your peak.

All in all, this book was a treasure trove of encouraging information and was written in a breezy fashion that made it an easy read. My biggest critique is the citations weren’t organized in the clearest way, but this could be due to me purchasing the book on kindle.

I’m attaching my outline with notes from each chapter—8 pages—below. Please download if you liked this post because a lot of ideas I didn’t include here are developed on that document. But, obviously, read the book for yourself if you truly want to understand how to become an expert in your field.

Outline for Peak

Check out the book on Amazon here:

 

 


The Gluten-Free Label and Gluten Sensitivty


A Gluten-Free Product that has been processed to removal Gluten
A Gluten-Free Label

The Gluten-Free Label

In 2013, the FDA created a regulation defining “gluten-free” as it pertains to food labeling. This regulation is the primary source of legal authority governing manufacturers who label their food products as gluten-free. While this rule has undoubtedly helped those with celiac disease select food unlikely to cause much maligned health consequences, the rule is still imperfect, if not complete.  This is because research and published material continue to highlight the adverse health consequences gluten consumption has on those without celiac—i.e., those with gluten sensitivity or gluten intolerance.  Thus, the gluten-free label as it stands today is not the be-all-end-all, and consumers should remain scrupulous when buying gluten-free products containing trace amounts of gluten.

To further explain this, lets look at the wording of the FDA’s regulation.

The Regulation: 21 CFR 21. Part 101. Section 101.91—Gluten-free labeling of food

Gluten (meaning glue in Latin) is a protein composite that acts as an adhesive material to hold flour together to make a variety of bread-like products.  This protein tends to cause many issues for those with celiac disease—a chronic inflammatory disorder of the small intestine—and the FDA proposed and adopted a rule clarifying which products manufacturers could label as gluten-free to help those with celiac.

The rule is found in Title 21 of the Code of Federal Regulations, Part 101, Section 101.91.  After a brief statement of definitions, the rule explains what is meant by gluten-free. Unsurprisingly, any food bearing the label cannot contain an ingredient that is either a gluten-containing grain (e.g., spelt wheat) or and ingredient that is derived from a gluten-containing grain and that has not been processed to eliminate the gluten (e.g., wheat flour).  The final clause, however, is the one of interest.  It states that Gluten free means a food that does not contain the following: “An ingredient that is derived from a gluten-containing grain and that has been processed to remove gluten . . . if the use of that ingredient results in the presence of 20 parts per million (ppm) or more of gluten in the food.” In other words, a gluten containing food can still bear the gluten-free label as long as the presence of gluten is below 20 ppm gluten.

The FDA chose 20 ppm as the cut-off because this level has been shown to be safe for people with celiac—as established in a 2007 study.  This is also the standard adopted adopted in the European Union.  While limiting gluten to this threshold does not cause inflammation in the small intestine that affects people with celiac, it may still pose a problem for those who have a gluten-sensitivity.

Gluten Sensitivity is Different than Celiac Disease and Regulatory Interpretation

A food sensitivity is a response from the immune system and someone is “gluten-sensitive” if they react to gluten with a perceptive inflammatory response.  This category of individuals is much larger than the celiac population, and this group should be skeptical of a gluten-free label because the FDA’s regulation is only concerned with gluten as it relates to those with celiac.

This can be gleaned by taking a textual approach (relying on the regulation’s text alone) in interpreting the regulation[1] and looking at how the FDA defines the term gluten: “[T]he proteins that naturally occur in a gluten-containing grain and that may cause adverse health effects in persons with celiac disease.  There is no mention of gluten as it pertains to those without celiac.

Additionally, interpreting the text in light of the regulation’s statement of basis and purpose confirms the FDA was only concerned with gluten vis-à-vis celiac disease.[2]  In the “purpose of the rule” section, the FDA states that this rule is necessary “to ensure that individuals with celiac disease are not misled and are provided with truthful and accurate information. . . .”  Again, there is no mention of gluten-sensitive individuals in the FDA’s purpose of the rule statement; only a preoccupation with Celiac-inflicted consumers.

As this analysis illustrates, the FDA was not concerned with non-celiac consumers, so that label shouldn’t confer a health halo upon gluten-free foods that have been processed to remove gluten.[3]  As one commentator states, we know “very little about non-celiac gluten sensitivity, [so] we can’t yet determine what a safe level for that population is for that population without further studies.”[4]  While we may know very little about gluten sensitivity compared to celiac disease, there is still enough evidence to suggest many of us are gluten-sensitive, and so, need to be cautious when buying gluten-free products.  The remainder of this article is devoted to explaining some common issues with consuming gluten for the non-celiac.  My goal is to inform the most conscientious consumer to think twice before buying a product once tainted with gluten, but subsequently removed through processing, so that they may either stay away from that product completely or at the very least make a fully informed decision when buying.           

Why Should We Avoid Gluten

            The book Grain Brain, David Perlmutter’s New York Times bestseller, concisely summarizes the research looking at gluten and its effect on our body and brain.  The biggest concern is the potential for neurological decline and inflammation in places other than the small intestine—the type of inflammation that occurs in those with celiac.  Researchers have drawn the following conclusions:

  • “Gluten sensitivity is common in patients with neurological diseases of unknown cause and may have etiological significance.”[5]
  • Gluten interferes with the body’s neural networks and is linked to neurological harm in patients with and without evidence of celiac disease.[6]
  • “People with celiac have significantly increased production of free radicals, and they exhibit free radical damage to their fat, protein, and even DNA.”[7]
  • “[T]he immune system’s reaction to gluten leads to activation of signaling molecules that basically turn on inflammation and induce what’s called the COX-2 enzyme, which leads to increased production of inflammatory chemicals.”[8]
  • “Gluten sensitivity—with or without the presence of celiac—increases the production of inflammatory cytokines, and these inflammatory cytokines are pivotal players in neurodegenerative conditions.”[9]

As these bullet points illustrate, non-celiac consumers need to be wary of eating gluten.  With such grave consequences documented in the scientific literature, relying on an FDA regulation that only addresses gluten in the context of celiac disorder is unadvisable.

I hope this post draws attention to the mono-focused FDA rule and allows the consumer to tread carefully when deciding to buy a gluten-free product, which may still contain trace amounts of gluten.[10]

 

 

 

[1] While courts have not developed a consistent approach to regulatory interpretation, decisions sometimes rely on the regulations text. See e.g., Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 880 (2011) (concluding a phrase in a regulation was ambiguous because the “text alone does not permit a more definitive reading.”).

[2] See Generally, Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (arguing that courts should take a purposive approach when interpreting agency regulations, which consists of looking at the regulation’s statement of basis and purpose or preamble); See also Secretary of Labor, Mine Safety & Health Administration ex rel. Bushnell v. Cannelton Industries, Inc., 867 F.2d 1432, 1438 (D.C. Cir. 1989) (J. Ginsberg) (agreeing with agency interpretation because, in part, it was “fully consonant [with the] administrative history and purposes.”

[3] A health halo causes consumers to overestimate the healthfulness of the Natural food item See John Tierney, Health Halo Can Hide the Calories, N.Y. Times, Dec. 2, 2008, at D1; 5 Most Confusing Health Halo Food Terms, Health, http://news.health.com/2014/07/25/5-most-confusing-health-halo-food-terms/ (last visited May 13, 2016).

[4] http://theceliacmd.com/2013/08/clarifying-the-new-gluten-free-labeling-rule/.

[5] Perlmutter, Grain Brain, 52 (citing Marios Hadjivassiliou, et al., “Does Cryptic Gluten Sensitivity Play apart in Neurological Illness?” Lancet 347, no. 8998 (February 10, 1996): 369-371.

[6] Perlmutter, 60 (citing Rodney P. Gord, “The Gluten Syndrome: A Neurological Disease,” Medical Hypotheses 73, no. 3 (September 2009): 438-40.

[7] Perlmutter, 60 (b citing Gianna Feretti, et al., “Celiac Disease, Inflammation and Oxidative Damage: A Nutrigenetic Approach,” Nutrients 4, no. 4 (April 2012): 243-257.

[8] Perlmutter, 62 (citing Gianna Feretti, Ibid).

[9] Id.

[10] There may also be issues with gluten-free products because of the fillers and additives used to supplement the absence of gluten. These fillers can spike your blood sugar enormously, which can cause a host of other medical issues.