ADF attorney Chris Schandevel explains how he got the opportunity to orally argue dozens of cases in multiple appellate courts including state supreme courts in just a decade of practice. We also discuss:
👩⚖️Does oral argument make a different? Can amicus briefs make a difference? Yes, and one case proves it: Chris talk about Kligler v. Attorney General in the Massachusetts Supreme Judicial Court, where Chris’s amicus brief and oral argument made the difference.
📃Even a failed petition for certiorari makes a difference: ADF’s petition in Hoggard v. Rhodes asked SCOTUS to review the extension of qualified-immunity even to campus police officers’ non-urgent action restricting free speech. SCOTUS declined, but Justice Thomas wrote a statement agreeing with ADF’s argument, and that statement has been cited in nearly 100 decisions since then.
🕔Will the 3rd Circuit’s new 5:00 p.m. filing deadline help or hurt work/life balance? A perspective from a public-interest firm where most attorneys leave early to put kids to bed… but then log back in for some night filings.
✍Top 10 Briefing Myths! Get ready to be offended if you still use Times New Roman and two spaces after a period! Please send complaints (in Century Schoolbook font) to Chris Schandevel.
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
Jeff Lewis 0:17
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:19
And I'm Tim Tim Kowal, both Jeff and I are certified appellate specialists and as uncertified podcast co hosts we tried to bring our audience of trial and appellate attorneys to some legal news and insights they can use in their practice. As always, we're very grateful if you find this podcast helpful to recommend it to a colleague.
Jeff Lewis 0:34
Yeah, if you find it unhelpful, recommend it to a spouse as a natural sleep remedy. Before we jump into this week's discussion, we want to thank casetext for sponsoring our podcast casetext is a legal technology company that has developed AI backed tools to help lawyers practice more efficiently since 2013. Casetext relied on by 10,000 firms nationwide from solo practitioners to American law 200 firms and in house legal departments. In March 2023, casetext launched co counsel, the world's first AI legal assistant, who will co counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy listeners of our podcasts enjoy a discount on casetext basic research at casetext.com/calp. That's casetext.com/calp. Now,
Tim Kowal 1:17
Jeff, both both you and I are private practitioners, all of our clients, you know, we expect to get paid in cash money by our clients, and our clients tend to seek cash remedies in at least our business litigation cases of our last guest with our last guest. We talked about litigating important constitutional issues and public interest issues. And I thought we'd carry on that discussion. And we're privileged today to have Chris Chanda Vale to the show to talk more about what it's like to litigate an appeal cases at some of the highest levels in state and federal courts. cristiana, Val serves as Senior Counsel on Alliance Defending freedoms appellate advocacy team as a constitutional appellate litigator, he represents ADF clients of all stripes on appeal, preserving lower court victories and seeking to overturn unjust results since joining ADF. Four years ago, Chris has briefed and argued cases in various circuit appellate courts and State Supreme Courts. He was on the team of attorneys who successfully represented the Thomas Moore Law Center in the US Supreme Court and he regularly represents clients in friend of the court briefs. We would call that amicus briefs, but we don't know how to pronounce that were Jeff. amicus briefs filed in state and federal appellate courts and in the US Supreme Court before joining ATF, Chris served as an assistant attorney general in the criminal appeal section at the Office of the Attorney General of Virginia where he helped argued helped brief and argue dozens of appeals in both the Virginia Court of Appeals and the Virginia Supreme Court. And before that, Chris clerked for the honorable Stephen R McCullough of the Virginia Court of Appeals. Chris, welcome to the podcast. Thanks for joining us.
Chris Schandevel 2:52
Thanks, Tim. Thanks, Jeff. It is a real thrill and treat to get to be on with you guys and kind of nerd out on some appellate law issues. I couldn't I honestly couldn't think of a more fun way to spend this Tuesday afternoon.
Tim Kowal 3:04
Yeah, well, we are in strange breed, Chris. But we are pleased and also excited to talk about some of some of your experiences, which are very exciting to talk about with your Supreme Court experience. I watched your oral argument in the Massachusetts Supreme Court. We'll talk about that a little bit later. But just to get to know a little bit more about you personally, reading from your bio, it seems like you may have crossed several things off of your career bucket list already. Is that true? And what do you have in store?
Chris Schandevel 3:31
Sure I have. And to be honest, it wasn't a career bucket list when I set out to to accomplish what I have. I went to law school hoping to do constitutional litigation of some sort, but not really thinking I would end up doing appeals. I had friends in law school that were you know, they'd done speech and debate in college. They were great professional debaters. I didn't even know what Robert's Rules was. So I definitely, you know, didn't try out for moot court didn't do any of those things I kind of assumed that it was for for the other other classmates of mine, and then ended up getting a clerkship on the Virginia Court of Appeals, as you mentioned, straight out of law school that allowed me to see the practice of law at the appellate level and really fell in love with the way that the law is litigated at that level. That led to an opportunity, as you mentioned in the state attorney general's office doing Criminal Appeals, which I also really fell in love with getting to argue 60 Court of Appeals arguments in the state court of appeals and 14 in the state Supreme Court. And my first five years of practice as an attorney is just very rare from what I'm told, and was just so many incredible learning opportunities. I just really loved it and got a lot out of that and that led to where I am now. ADF really doing my dream job doing appeals and areas of law that I'm really passionate about and interested in.
Tim Kowal 4:52
Yeah, I had a question. Did you ever you know, I mentioned at the top that both Jeff and I, you know do do private practice. We are in awe of have attorneys like yourself who do public interest work? It's something that we admire from afar. Did you ever consider doing private practice? Or did you always want to do public interest work and government work?
Chris Schandevel 5:10
So I always wanted to do public interest work and government work going into law school, in law school, looking at the amount of law school debt that was going to face me, once I graduated, I kind of did my best to convince myself that maybe a summer at a law firm and maybe a couple years at a law firm, wouldn't be too bad, you know, make some money, pay off the debt. I'm not sure I ever really convinced myself that I wanted to do that. And I certainly didn't convince my big law interviewers, when they were interviewing me that I wanted to do that, because I didn't I did on on campus interviews, got one call back, but no, no offers to go to do a summer with a law firm my second summer. So that's what led me to the unpaid internship at the Virginia AGs office. And they told me, you know, this is not an opportunity to get paid. Number one, it's not an opportunity to get a job straight out of law school, because they weren't doing a lot of hiring straight out of law school. So they said, it's really a chance to get some good experience, meet some people make some connections. And I ended up working with an attorney while I was there on a giant doc review project in the basement of the governor's building there in Richmond, Virginia. And at the start of the week, it was me and 10 other interns working on that project and a couple of attorneys, by the end of it, everyone had dropped off except for me, and one attorney who kind of hung in to the bitter end, and made a good connection with him good relationship and found out at the end of it. Little did I know the entire week we spent working together he had just been appointed to be on the Virginia Court of Appeals. And this is while I am submitting my clerkship applications and getting rejection after rejection. And so quickly reached out to him asked if I could apply and he was very gracious, allow me to do that, and then ended up working for him. So that's kind of what started the process. But yeah, I have never, I've never had to build a client. In my nine years of practice. I wouldn't even know where to be where to begin with that.
Tim Kowal 6:59
Well, you you touched on something that I did want to ask you about along that vein, about you know, you're coming out of law school, you're looking at at law school debt and looking at some ways how do I pay this off? How do I maybe you know, own a home and start a family and things like that, that we all start that we all think about when we're starting off on our career. And it reminded me that, that when the UC, the University of California system here started a law school in Irvine about 10 years ago or so. And I remember their first the first class maybe the first couple of classes, they didn't charge tuition of their students. And I remember that the dean at the time, Erwin chemerinsky was very proud of the number of of their law graduates who are going off onto careers and public interest law. And I thought, well, that's that's easy to do when you don't have any tuition loans to pay off. Right, right. Right. Most of us have, you know, an enormous loans to pay off and how big a factor is, is money. It was it was a factor, obviously, for you, but you were able to overcome it is that how are you able to overcome it? And do you see more good and evil, good hearted attorneys who would like to do public interest law but are kind of forced into the slot of doing billable work? Sure. So
Chris Schandevel 8:07
when I went to law school, I went to UVA for law school. And you know, a lot of folks go to law school and get a law scholarship and managed to find ways to limit their costs in law school, I got into UVA, and was honestly just happy to be there. So I did not get any scholarship help. So in speaking with, you know, friends and folks who had been through law school themselves, and was told there's really a couple ways to deal with law school debt, there's the big firm route and kind of live below your means for few years, and then pay the debt down that way. But if you want to go public interest, there is the Public Service Loan Forgiveness path. And so I first thought I would go the firm route and pay it down that way, when that didn't work out, I started pursuing the Public Service Loan Forgiveness path. And the way the system works right now is you make your payments for 10 years, and they're kind of adjusted based on your meager government salary. So you don't pay quite as much per month as you would if you were if you're working at a firm, and then to the 10 years go by and you know, you're kind of living on a hope and a prayer that Congress is going to pull the rug out from under you at some point in those 10 years. But I'm just now coming up on my 10 years. And so knock on wood, all so far has gone well. So hoping to have having given back through the public interest work that I've been able to do and hoping to have those loans forgiven here shortly. So that's that's been the path that I took.
Tim Kowal 9:22
Yeah, well, and it's enabled you to have a very successful career so far litigating a lot of high profile constitutionally significant cases, has all that left you enough time to for a personal life, and what are some of your favorite ways to spend your personal time away from work?
Chris Schandevel 9:39
It has for sure. So, I mean, so the when you're working in government, one thing that you learn pretty quickly is that the reward for good work tends to be more work. So I stayed pretty busy working in at the AGs office, but I did have the flexibility and the freedom that you know, no one was, you know there at 530 Making sure you were still chained to your desk cranking out briefs and memos, you really had the flexibility from outside those normal business hours to go home, have dinner with the family, and maybe do some more work in the evening, once the family has gone to bed if you need to. And that's really carry over to the position I'm at now with Alliance Defending Freedom. ADF is very family friendly. Their position is that there's really no more important work that a mom or dad can do than the work that you're doing that we're doing in the home. So there really is a big emphasis placed on you know, getting home for family dinner, that you really shouldn't have to miss a family dinner. And so our office actually clears out around 530, every afternoon, evening, and everyone goes home and spend time with the family. Now you might get a flurry of emails between 10pm and midnight from attorneys logging back on once the kids are in bed. And that's something that I've done my share of but yeah, so I have four kids, their ages 642 and five months, a daughter and three boys. And so that's how I spend the vast majority of my time outside of work is just playing floor hockey with them in the living room, eating dinners together going on trips, etc. They're they they really keep me grounded and bring a lot of joy to my life.
Tim Kowal 11:11
Yep. Yeah, they will definitely keep you grounded and keep you humble. Yes, yeah. Well, you mentioned about that flurry of emails, a flurry of activity, you know, after hours after the app to after the kids are to bed, and some of the attorneys log back on and do some of their filings before the 1159 deadline. And that brought to mind the news out of the Third Circuit that you may have heard about that, they're going to start implementing a 5pm cap on filing. So if a filing is due on January 2, that means 5pm on January 2, not 1159. On January 2, how do you how do you think that will change habits and customs at your office if if attorneys are logging off at 530 Knowing that, okay, I'm gonna go home, have dinner with the wife and kids. And I'll just get that filing finished up and filed at 1010 o'clock after the kids are in bed.
Chris Schandevel 11:59
Yeah, I saw that. And I honestly I wasn't sure how to feel about it. My initial thought was, oh, great. If my filing deadline is bumped back by however many hours, that is to 5pm I have to pull the all nighter the night before I otherwise would have stayed up late to get that brief done. So it's just gonna mean a later night, earlier in the week for me. But as I thought about it, and kind of read some of the commentary around, I think the genuine motivation behind it was to allow attorneys to have a little more work life balance to be able to check out at 5pm. And know that the brief was done, the brief was filed, and it's time to go home and spend time with the family and have that life outside of work. So if it can really have that effect, then then perhaps it'll end up being a good thing in terms of work life balance, if it just had this has the effect of kind of squeezing everything earlier in the week earlier before the filing deadline, it maybe won't have that maybe it'll backfire. So I imagine they'll let it go for a good year or so and see how things play out. And I'm sure other courts are kind of watching to see to see what happens there. And the third circuit.
Tim Kowal 13:02
Yeah, so let's take a wait and see approach to see if the stated goal of that new rule, which is to help foster a better work life balance if if that goal is actually furthered by this initiative, or new way? Yeah. Now, when we talked offline, you had mentioned about some of your your experiences with in public interest work and how you know, you you have been blessed and privileged to always I was feel that the cause that you're representing is something that you're personally aligned with. You know, that's that's another difference that Jeff and I may have with, with public interest lawyers that, you know, sometimes, you know, the the first thing we do want to make sure that our client has has a legitimate claim. And then the next thing, we want to make sure that they can pay their bills. But you know, whether we align with our cause is, you know, is a distant consideration. Sometimes it would be nice if we could always make that line up. But it doesn't always are your clients always in the right, as far as you're concerned?
Chris Schandevel 13:59
I would say that well, first of all, there are there are no perfect angels in the world. We're all flawed human beings, right? So we all have our faults, myself included. But just like I said earlier, I've never had to build a client in my nine years of practice. I've also never had a client had a case where I felt like the client that I was representing was morally in the wrong. I've always felt like the issues that are on the table. The case it's being litigated. I have been on the side of good and my clients have been in the right and that's really a special and unique privilege. I mean, you say so I did before law school back in back in high school. I did a lot of fast food work. I was an W Long John Silver's guy and did a lot of manning the drive thru and talking to customers. And you know, the old saying is the customer's always right, because they're the customer right? And I think you have paying clients there's probably I don't know, you guys can speak to this more than I can but it's probably the extent to which the client is not alright, always right but the client is Right, because they're the client, and you need to do what's in the best interest of the client. Whereas I feel like in public interest work. And the work that I've been able to do, more often than not the client is the client, because the client is right. And that's a unique approach to practicing law and relationships with our clients where I feel like not only do I have the duty to the client that I would have, you know, in, in the other case, as an attorney, but I also believe in the cause that the client is standing for and advocating for. And so that brings an extra incentive to really give it my all and speaking for them and advocating their cases.
Tim Kowal 15:35
Yeah, yeah, that's right. That's, that reminds me of one of my favorite quotes that I've never been able to find if it's actually attributed. It's attributed to William Jennings Bryan, I'm not sure if he actually said it. But sounds like he might have said it. He said, when he was confronted with the question of, of the free silver movement, and he said, it was a candidate from Nebraska, and he said, well, the people of Nebraska are for free silver. So I'm for free silver, I'll look up the arguments later. Right. Right, right. Look, every cause needs to have an advocate, if if they don't have an advocate in the public forum, making advancing those advocates, you know, in legitimate ways, then you're gonna have a lot of people who have a legitimate opinion, but don't have a legitimate way to voice that opinion. And so that's, that's the purpose of lawyers and politicians, for that matter.
Jeff Lewis 16:19
Yeah. Right. There's a there's a criminal defense lawyer, I can't remember his name, who's has a say it's one of my favorite sayings. He says, If I only defend the righteous, what tools will I have to defend them with? Yeah, yeah. And it comes up a lot in free speech cases, when you do anti slap work. Yes. People all the way on the left and all the way on the right and everywhere in between. And they all have free speech rights.
Chris Schandevel 16:38
Yeah, absolutely. As a criminal attorney on the prosecution side, in the state AGs. Office for those five years, I was always so grateful for the defense attorneys on the other side, who cared about the work that they were doing, and did it well, because the odds of getting to a right and just outcome increased exponentially when the attorneys on both sides are doing their best work.
Jeff Lewis 16:58
That must have been an incredible adjustment for you for five years, you're representing the state and the power of government and those deferential standards of review. And you're more often than not, I'm guessing the respondent? Yeah, meaning the other side of the appeal, going from that kind of practice a law to Oh, my God, I'm now the appellant and I'm looking to change the law rather than let's just say apply well settled principles. How did that adjustment play out for you?
Chris Schandevel 17:25
It was definitely an adjustment. I've gone back and looked through my my Westlaw sites to cases I litigated and I probably had an 85 to 90% win rate at the at the AGs office. But again, you know, if it's a criminal appeal, you know, we won below, right, we don't get to appeal when we lose a jury trial true. So that that definitely changes those deferential standards on appeal. So I only had, I probably litigated six or seven of those cases, were cases where I got to be the appellant at some point in the process, either a pre trial suppression ruling, or maybe we would lose in the intermediate appellate court and appeal that case up to the state Supreme Court. And to be honest, I always really love the challenge of being in the role of the appellant and having to, you know, persuade this panel of judges or justices that what happened below was was legal error and was incorrect, and that the court should reverse that because it does feel like feel it's a more satisfying when I feel like when you can kind of flip the script and get a result reversed. So one of my favorite experiences in court, um, there was a time I was arguing two cases in the Virginia Supreme Court back to back on the same morning, and we were the apple ease and the first one we say police and appellants here in Virginia. So is the Apollyon. The first and then the appellant. And the second and the first argument, the appellant used up all of her rebuttal time. And so I literally gave my 15 minute Spiel as the APA Lee went back to counsel table, gathered up my books, walked across the courtroom to the other counsel table, put them down, went right back to the podium and launched in to my argument as the appellant in the second case, but I loved the challenge of you know explaining to a court what you know where the error was and the decision below and trying to persuade the court to reverse that decision because that's that's what I think it's hard for judges to do sometimes because you know, judges at all levels are very bright and very smart and for the most part just trying to get the outcome right and for a group of judges to have to say that another judge erred and not just I would have decided differently but err to such an extent that is either an abuse of discretion or a legal error and has to be reversed and sent back. That can be a tall ask. So it was definitely a different challenge. When I was in that position that he is office it's been very different coming to ADF. We are we have been the the APA li are the appellant more often the APA li a lot of my cases and so that has been different but again, it's been it's been a fun challenge and I've really enjoyed it.
Tim Kowal 19:53
Interesting how common are issues of waiver and forfeiture record preservation in in your or with with PLF. And in your public interest in constitutional litigation, they come up all the time in the work that Jeff and I do. And we we report on those cases as they arise in California Ninth Circuit all the time. Are they as prevalent? Do they come up very often in your cases? And do you have for that reason, for the reason of making a record? Do you have appellate counsel, consulting with your trial attorneys to make sure that, hey, this is obviously going to go up to on appeal, and we need to make sure that we've got all these important issues preserved?
Chris Schandevel 20:30
Sure. So they're, they're definitely common. My I've been joking with my colleague recently, we both kind of feel like we came to ADF to do constitutional litigation on these big issues of free speech and religious freedom. And we've kind of turned into Article Three standing attorneys more recently, because so many of our cases are being litigated on standing grounds, either, you know, sometimes that's, you know, us as the plaintiffs kind of defending claims that we don't have standing or it's us on the on the defense side and making the argument of the plaintiff across the V from us, I didn't have standing to bring their claim. So we've certainly been litigating a lot of those threshold issues and arguments and our own cases. And the benefit of being at ATF, I mean, one of the neat things about the way that we're structured and the way that we do our work. And so we don't do a lot of cases like jury trials, bench trials, not many of our cases quite reached that level, they tend to get resolved motion to dismiss or summary judgment. But we do have a team of trial attorneys and our teams are kind of broken down into subject matter areas. So we'll have like a free speech team, we'll have like a conscience team that has like more religious freedom, academic freedom, parental rights, pro life team, and those are the trial level experts that litigate the case at that level. And then we've got the appellate team that will come in and kind of assist once the case gets up on appeal once we have a decision below. But those teams are really good at that having conversations with us appellate folks throughout the process, when potential issues of waiver issue preservation come up. And they're also very good. So ADF, for a long time, didn't have an appellate team. So the trial attorneys who had been litigating these cases at the trial level, for the longest time, were litigating their own appeals. So they got to be very good at at spotting issues that might, you know, preservation issues, waiver issues, and making sure that those were all covered before we got to the appellate level. So we're very blessed just to have the level expertise that we have across the team of attorneys here.
Jeff Lewis 22:22
Yeah, let me Yeah. Let me ask you this. There was this actor by the name of Johnny Depp, who had a little lawsuit out there. Yeah. In around the same time that was going to trial, I think, Virginia amended its anti slap law to make the anti slap law a little more robust, not quite as robust as California, but more robust. I'm wondering, with the tightening up of the anti slap law in Virginia, have you seen an uptick in public interest lawsuits invoking the anti slap law terms of protecting free speech?
Chris Schandevel 22:51
Yeah, so I knew you were the anti slap guy, and I knew you were gonna go there with me. And I was worried about it, because I've not litigated an anti slap case, nor have I really seen it cropping up in our cases yet. I will say that we ADF has recently opened an office in Northern Virginia, like a second headquarters, more or less. We've had a lot of cases we've been litigating here in Virginia and Virginia State courts. So maybe I should be surprised that I haven't seen it crop up as an issue yet, or it's probably something good to have on my radar as an issue that might start to get litigated more often here in our courts. But yeah, not an issue I've seen yet in the in the cases that I've litigated.
Tim Kowal 23:29
Got it. All right.
Let me go back, Chris, to I had a question for you about when you were in the AGs. Office, did you ever have maybe an inkling of your future self as the as the appellant rather than than the appellee kind of gives you a premonition that you know, maybe maybe there was some error here, maybe there is some error? Maybe, you know, this isn't the greatest case to go forward on. You know, we talked about how, you know, you've been privileged to feel like you were always on the side of the right side of the cars in your public interest work. Did the same go for your work as in the governor's in the Attorney General's Office? Did you always feel like, you know, yeah, we caught the bad guy, and we got to get the conviction to stand or did you ever have any misgivings when you were there? And what what can you do about it?
Chris Schandevel 24:15
Oh, absolutely. And that's an important addendum to put on my answer earlier. So as I said, I've always felt like the client I was representing was morally in the right with the position that we're taking in court. Now, that doesn't mean that I always believed that the prosecution had been in the right at the trial level, because not all convictions are righteous and morally sound and there are errors that are that creep into the process. And so the thing that I loved about being at the Attorney General's Office on the prosecution side is that the goal wasn't just to get a win for the government. The goal wasn't just to get every conviction affirmed. The goal really was to do justice. And that was preached from the top down. And so as an attorney litigating these these these Criminal Appeals and then also litigating habeas corpus cases, I knew from my superiors that if I found an error in the record that had properly preserved, properly raised and litigated that I had the ability to write a memo to my superiors and say, You know what, I think we need to confess error here. I think we did get this wrong in the trial court. And we need to either vacate this conviction or send this case back for a new trial or an habeas corpus. One thing we did a lot of was giving petitioners a delayed appeal, where they had perhaps asked their attorney to file an appeal. But the attorney had said, No, you don't have a chance go away, leave me alone and had dropped that ball, we would often file memos with the Court of Appeals and ask the court to give that habeas Petitioner the appeal that he was entitled to that had been denied to him. So I, some of again, I mentioned earlier, like how fulfilling it is as an appellant to get a victory, you really feel like you've made a difference in that case, as opposed to just getting a result below affirmed as the EPA Li and same with being a government attorney, and at times even getting a conviction reverse or sentence reduced, or a delayed appeal granted to someone who is entitled to wants to one you really felt like you were a part of, you know, getting to the right result and making a difference that if you hadn't been there, you know, the wheels might have just kept on turning and that unjust conviction or sentence or whatever it might have been, might have been allowed to stand. So I was very grateful to be on on that side and have those kinds of opportunities and have the support from my superiors to really get to the right result as the law required.
Tim Kowal 26:29
And while you worked in the Attorney General's Office, of course, your your job wasn't just to, to work on Criminal Appeals. But it was also, you know, the AGs work is is broader than that. I wanted to talk about a few of your few of the interesting cases you've worked on both in the Attorney General's office and at ATF, you know, there was the one case first case I wanted to mention was Turner versus Commonwealth a case you worked on. While you worked at the attorneys General's office in Virginia. This was a concerning Virginia's new statute which prohibited the display of news in a way that constitutes a threat. Maybe Could you tell us a little bit about that case, how it came out, because that, you know, presents an interesting issue there, you know, you are in that case, defending the government and that in the statute in that case, and that it has a rational basis. And against the Free Speech challenge. I guess what, it's a strict scrutiny analysis, because it's phases of free speech challenge. And then I'd like to get Jeff's comments on it too, as a free speech specialist. So, Chris, tell us a little bit about the Turner versus Commonwealth case case and how that came out. Sure. So
Chris Schandevel 27:35
that was a very interesting case, both legally and and on the facts. So So factually, it's my understanding that was the first time Virginia had ever prosecuted someone under its new statute. So we have a set of statutes that prohibit hanging a noose burning across the cross burning case actually went up to the US Supreme Court in the black Virginia versus black case, I think there's also a statute that prohibits writing a swastika in the same manner in a way to basically threaten someone and to make them unreasonable fear of bodily harm. And so when we prosecuted an individual, who essentially had gotten into a property dispute with a couple of his African American neighbors who lived on the same street as him, men had thrown slurs at them, it was we've been very hateful towards them, and then eventually escalated it to the point where he hung a basically a dummy in effigy from a noose in his front yard, where those families, you know, driving by every day to get to their home, or their kids walking by his house to get to their home, had to walk by it every single day. And because of their past interactions with him, this individual they they took it as he's threatening us, this isn't just, you know, someone trying to express an opinion or doing something of that sort. This is actually this guy means business. And so we had testimony from the families about how they were afraid to leave their house and worry about whether they're going to be at risk walking up the street, they're afraid to let their kids you know, walk to play with their neighbors outside. So we brought the prophet the Commonwealth attorney brought the brought the lawsuit and then got the conviction. It got appealed up to the Court of Appeals at the time, the Court of Appeals only took cases by petition. So they granted the petition, realize these First Amendment issues that the defendant was making were important issues to litigate. And I was able to work pretty closely with our state SG section and writing the brief prepping for oral argument litigating that case, the Court of Appeals and the state Supreme Court.
Tim Kowal 29:29
Are there any were there any public interest law firms involved for the defendant, in that case, free speech? Sure, firms
Chris Schandevel 29:37
there actually weren't and doing what I do now, it does make me I'm almost surprised by that, that there wasn't a little bit more attention given to the case by public interest groups. However, having litigated the case, what I can say once I dug into the issues, I mean, at the outset, you think, Wow, this is a difficult First Amendment issue of you know, is this the sort of speech that we can prohibit or you know, is this just hateful speech? Each day the government doesn't like and once you give the government the ability to, you know, outlaw all speech it doesn't like I mean, that's a pretty scary place to be in terms of slippery slopes. And what I realized was that the General Assembly in Virginia really did a good job of writing the statute in a way that it perfectly tracked the US Supreme Court's Case law on what constitutes a true threat. And so because of that, it was pretty narrowly cabined, to only criminalize this sort of hanging a noose burning across in a way that really does put someone in reasonable fear of of harm to their lives and cases where that was the defendants intent, he was trying to threaten the person who is going to be the recipient of that message. So I was able to get the conviction affirmed on First Amendment grounds in the court of appeals of Virginia. And then in the state Supreme Court, the defendant actually dropped his first amendment claim and turned it into just a statutory interpretation case about what constitutes a public place and whether his front yard is a public place under the statute, we were able to persuade the court that it does, and it did and get the conviction of firm there as well.
Tim Kowal 31:02
Any any First Amendment commentary on that one, Jeff?
Jeff Lewis 31:06
You know, I don't think there are First Amendment concerns in the context of an intention, a jury finding of an intention to intimidate, you know, write a noose in the city in front of the Capitol in Washington, DC without context is first amendment protected, but that news with an intention to do harm somebody inside the Capitol, you know, there might be a violation of the law there. So, and I think I had read a couple of opinions that said maybe this issue wasn't even properly briefed, or preserved in one of the appellate decisions I read. So there's no wasn't really a meaty, substantive discussion of the First Amendment in this case.
Chris Schandevel 31:43
Yeah, it was a very interesting case and fun case to litigate. And it appeared much more interesting on the papers when it got to my desk, because I did think it was going to be difficult First Amendment issue. But it was a case where the General Assembly had just done a such an excellent job drafting the statute, which you don't necessarily always see that statutes are drafted perfectly to fit with constitutional constraints by here. We did. And so that made litigating the constitutional issues much easier on the side of the government and also gave me a lot less heartburn about, you know, doing some sort of greater harm to broader First Amendment interests in other cases. Right, right, right.
Tim Kowal 32:18
Yeah. Okay, Chris, I also wanted to talk about another case you worked on while working at Alliance Defending Freedom, Hoggard versus Rhodes. This is a case that involved a student in a lawsuit against university officials, after the university had sent campus police to shut down the students table outside the student center that was recruiting students for a conservative student group in the Eighth Circuit. In that case, it found that there was a First Amendment violation, but that the university officials had successfully asserted a qualified immunity defense and tell us what happened in that case, and especially how you wound up getting Justice Thomas to write to write a statement that I think was not in a in an opinion on to ask you if this comes from the shadow docket, but it's basically the cert petition was denied. But you wound up getting a very quotable statement from Justice Thomas, it's been cited in many opinions since then,
Chris Schandevel 33:14
we did. So we were very, you know, obviously, we were hoping to get a cert grant in that case. I know there have been a lot of cases pending in the US Supreme Court in recent years trying to get the court to address this issue of qualified immunity, which is really just this judge made doctrine that protects government officials when they violate the constitutional rights of their citizens unless there's what's called clearly established case law. But what the courts have read to mean, unless there's a case that's almost identical on the facts that was decided previously, in the same jurisdiction, you can't hold that government official liable for violating someone's constitutional rights. And so we represented this college student, she was trying to start a conservative student group on her college campus. So she set up a table outside the student center, and was just basically signing up names. Anyone who wanted to join her group could stop by the table, sign up their name on a clipboard, and she'd given some candy and they go on their way. University officials called the police to remove her from that section of the patio outside the student center. Because apparently, because she was not yet a recognized student group, she was not allowed to be there, gathering signatures that she needed in order to become a recognized student group. So we felt like That was a violation of her first amendment right to be there in a public place on, you know, state property at a public university policy on her behalf. The Eighth Circuit, like you said, agreed with us that the school had violated her first amendment free speech rights are because there was no case in the Eighth Circuit that looked exactly like this one, they were not going to hold those public officials liable for that behavior. And so our cert petition, just to kind of close the loop on that, that our theory behind the cert petition was, you know, it's one thing when you're dealing with police officers We're on the street making Split Second Life or death decisions. I can understand the course not wanting to second guess those and the potential ramifications of that. But when it comes to university officials kind of sitting back in their ivory towers and coming up with, you know, speech codes and speech zones and all of those things, why should they get the same kind of deference when they violate their students rights that we're giving to police officers? So that just didn't make any sense to us. We teed it up as a question presented for the US Supreme Court. The Court, like you said, didn't grant cert didn't reach it. But Justice Thomas and a statement he issued respecting the denial of the cert in that case did say that the court really needs to take a case like this to clarify why it is that qualified immunity applies the same way to university officials that applies to police officers.
Tim Kowal 35:45
Yeah. And the Justice Thomas's quote here in the statement respecting the denial of cert basically adopted your your argument, the quote is, why should University officers who have time to make calculated choices about enacting or enforcing unconstitutional policies receive the same protection as a police officer who makes a split second decision to use force in a dangerous setting? And he says we've offered we have never offered a satisfactory explanation of this question, we should reconsider, either our one size fits all test or the judicial doctrine of qualified immunity more generally. And you mentioned that that's been cited close to 100 times already close to
Chris Schandevel 36:23
100 times already, which I think is pretty impressive for a statement respecting denial of cert, right? It's just
Jeff Lewis 36:29
what a total failure, you are Chris fry,
Chris Schandevel 36:33
failing to get started on that case, right. I mean, and the challenge in some of these cases is especially qualified immunity, right. So in the circuit courts, you have to argue this is clearly established, this is clearly established, look at how easy the case this is, look at all this case law that you have on this issue. And then if the court says it's not clearly established, then you have to go to the US Supreme Court and say, Oh, this is this unsettled issue that you should take up now. And so the the briefing strategy really has to change quite fundamentally between the work you're doing at the Circuit Court of Appeals and the work you're doing in the US Supreme Court. And we think I mean, that is true to some extent, in any case, you're filing a cert petition, then but particularly in this qualified immunity context, it really makes things difficult on the litigants.
Jeff Lewis 37:15
Chris, can I ask I haven't followed this debate very closely about qualified immunity. Is this considered considered like a conservative cause or a liberal cause to reexamine this doctrine?
Chris Schandevel 37:26
So I think it's it's interesting that it's an issue that really goes across ideological splits. So we regularly we have filed briefs in support of cases brought by folks that ideologically are to the left of us, and we've had folks ideologically, to let us bring filed briefs in support of our cases on these issues. Typically, you know, folks who lean left, their concerns tend to be, you know, police abuses that we've seen and how qualified immunity gets applied in that context. And I share a lot of those same concerns and the way that the doctrine plays itself out. But typically, you'll have, you know, the the law and order judges who don't want to touch qualified immunity in that context, but might be more amenable to an argument that you know, okay, even assuming it makes sense in that context for police officers, why are we applying it the same way for government officials who are sitting back and setting policies restricting free speech rights. And so that's where you really see the ideological divide, kind of dissolve and focus on kind of both sides of the spectrums coming together, asking the court to do something about this. So we remain optimistic that at some point, they will. It's interesting,
Jeff Lewis 38:34
I've had two friends suffer some injuries from law enforcement, and these friends look like the old fat white dudes. And both times the courts avoided really reaching the merits of the controversy under this doctrine, when I think some scrutiny was was merited. It's interesting.
Chris Schandevel 38:52
And that's the other downside of the doctrine. If I could just make one more point on it. So under a US Supreme Court decision, this is a two part test it was there a constitutional violation? And was that violation, quote, unquote, clearly established? Right. But the Supreme Court has said, you can do that. And courts can do that in any order they want to so they can first instead of asking, what was the law violated, they can say, Well, was it clearly established, assuming it was violated? And if they say, if they say no, it wasn't clearly established, thus, we don't need to decide whether or not it violated the Constitution, then the Law never gets clearly establish, and you're just kind of spinning your wheels. So that's that's another problem with the way the doctrine is played out that we're hoping the cord will address at some point.
Tim Kowal 39:31
Interesting. Yeah, that is, that is a crossover issue. And and I'm glad it is because when something is just branded as Oh, that's just a conservative issue, or that's just a liberal issue that it tends to get short shrift. Once it becomes a crossover, then, you know, maybe people start taking a more serious look at it and address it in a principled matter, rather than some sort of lopsided manner. They'll just appease one side of an issue. One other question, Chris, about justice Thomas's statement here, consider During the denial of cert in that in the Hoggard versus Rhodes case, would this be an example of the shadow docket? Does justice Thomas's statement there in with respect to denial of certiorari? Does that come from the shadow docket? The I put that in scare quotes? Because it's, it's mostly just a made up term, a neologism. But it's yeah,
Chris Schandevel 40:20
it depends. It depends on how you define shadow docket, right. So the US Supreme Court has always had an emergency docket, where cases come to them on kind of an expedited basis and have to get decided very quickly, with not a lot of briefing no oral argument. And so when you hear the phrase Chateau dock, and I think it's typically referring to those kinds of cases where the court does make a decision kind of on the merits of the case, either to stay a case or to grant an injunction, so to some extent, a decision that does at least touch on the merits. To an extent, this statement by Justice Thomas was not on the emergency docket. It's just a statement that he issued on the traditional in the traditional cert seeking process, you file your cert petition they granted or they deny it, if they deny it, justices will sometimes write an opinion either dissenting from denial, or they'll issue a statement explaining why they might have agreed to deny the petition. But these are some things the Justice just wants to have on the record. So we were if you want to loosely define shadow docket, you might say that this was but I think the technical emergency docket definition,
Tim Kowal 41:22
maybe not refers to the to the emergency docket.
Chris Schandevel 41:25
Maybe this is a penumbra of the shadows. I don't really know, I don't have my terminology nailed down.
Tim Kowal 41:31
But I was just going to ask if it's so easily found and cited up to nearly 100 times already. It's not not really in the shadows.
Chris Schandevel 41:39
But that's right. We're doing our best to bring as much light to it as we can. That's for sure.
Tim Kowal 41:42
There you go. All right. And then the last one last case, we'll briefly touch on kriegler versus Attorney General. This was another one of your cases that you worked on. With the Alliance Defending Freedom. You You did the oral argument in this case, this involved the Euthanasia Prevention Coalition USA, you represented them as an amicus in the Massachusetts Supreme Judicial Court in defense of Massachusetts common law prohibition on assisted suicide. And tell me a little bit about your involvement. In this case, just a shortcut, it sounded like this case was dismissed on a motion to dismiss. And the Massachusetts Supreme Court ultimately reinstated the case and sent it back. It was it was interesting watching your oral argument on that. But I don't want to get ahead of you on that. Tee that up a little bit for us. And because I want to ask you about your experience in the oral argument there because it was a very hot bench there. You had almost everyone on the Massachusetts Supreme Court had a question for you. And definitely had a point of view on the case and want to know how you how you were able to address all that. And whether that was expected as merely an amicus in the case and not one of the actual parties.
Chris Schandevel 42:48
Right. So it was certainly a unique experience as an amicus getting to getting to get oral argument time in that case, and getting as much time as I did. So just to make one quick clarification at the outset. So the the state Supreme Court actually affirmed the decision below and the decision below was that there is no state constitutional right to assisted suicide. So the the state Supreme Court agreed with our position as as an amicus, that the state constitution doesn't have some rights to you know, get a doctor to prescribe you, you know, lethal drugs, that you can then go and take on your own to commit suicide. So the way that we initially got involved in the case, so we do kind of monitor state courts and federal courts across the country, just to have a good sense of what issues are being litigated in some of our core practice areas. And this is certainly a case that fits within that mold, the case type of case that our life team would be litigating. So when we saw the cases going up to the state Supreme Court, we immediately thought, you know, the governor was defending the law, the Attorney General is defending it. So we thought, well, we'll file an amicus brief supporting the defense of that common law prohibition on physician assisted suicide. And as I dug into the case a little bit, I kind of realized, you know, while the state was defending it, and we appreciated that there were definitely some arguments that could have been made that that weren't being made that were kind of being left on the table there. And so we decided, you know, instead of your traditional amicus brief, where you kind of like, you know, make some policy arguments, maybe or some arguments at the margin, you know, we're going to file essentially a merits brief and lay out what we think are the strongest arguments as to why there's, there's no right to this and the state constitution. So we did that. We filed the brief. And then I was talking to my boss afterwards, and I'd tell him, I'm really pleased with how it turns out, I hope they read our brief, because I think we make some good arguments that are gonna get missed otherwise. And he said, Well, why don't we think about filing a motion to get you argument time before the court? And my first thought was, Can you do that? Is that do they let him make you come in and argue cases? And he said, Well, you know, the worst they can say is no, so we filed the motion and didn't hear anything about it. I thought that it was water under the bridge. And literally two days before argument. I got an order from the court granting the motion telling me fly up to Boston and do this oral argument and I got the notice on Monday documents on Wednesday. So it was a whirlwind of prepping for that getting the flight It's getting up there to do the argument. And the argument itself, as you said, was a very live bench and a bit of a whirlwind in and of itself.
Tim Kowal 45:08
I got to have your head on a spring because you know, you just had to keep you know, toggling back and forth back and forth to different judges peppering you with questions.
Chris Schandevel 45:15
Yes. And I'll tell you, I talked to someone afterwards, he was in the courtroom. And they said, Man, I'm, I'm so sorry, you didn't get to make any of the points that you wanted to make? Because you were up there just answering questions the whole time. And in my mind, I'm thinking to myself, actually, I made every single point that I wanted to make in the course of that 20 minutes, but I was able to make it in the course of having a conversation with the justices and answering their questions. As an appellate advocate. That's really that's really the dream, the ideal, that's what you want to happen. You want it to be a conversation where they are genuinely interested in your answers and asking you questions, because they want your help and getting to the right result. And I have never practiced before that court. But I have so much respect for the justices, they're now having been through that with them, because you can really tell that they were seriously engaged and interested in just getting to the right result, and getting as much help from the advocates in front of them to help them reach that right result. So I was thrilled and honored to get to be a part of that.
Tim Kowal 46:09
You could tell even though at one point, I thought one of the justices seemed like, like he wanted to get under your skin a little bit or to jar you loose and said, well, counsel, obviously you're very practiced in in your arguments. But what about you know, what about the sympathetic argument? What what do you say to this doctor on a personal level, you know, what, what's going through your mind when you know, when you notice that a judge is trying to get you off your script off your talking points out of your comfort zone? Do you do indulge and go out? Go out of your comfort zone? Or, you know, what's the best approach there and your view?
Chris Schandevel 46:39
Yeah, so I always take the approach. I never write off a judge or a justice going into argument as like an persuadable, I just decided, you know, other attorneys, maybe I haven't been doing this long enough to be as cynical as some might become. But I'm going to have that assumption that every judge or justice is there, because they want to get to the right result. And they're open to getting to the result that I'm advocating for. So when I hear that from a justice, my initial thought is honestly not that they're trying to throw me off. But that, you know, he clearly had problems with the arguments that I was making, and had some really deep concerns about, you know, the implications of the results that I was asking for. So I appreciate hearing that from a justice, I want them to share that with me and give me an opportunity to address it and respond to it. Because if they have those kinds of concerns that are preventing them from ruling in my favor, I mean, what who could ask for a better opportunity than to have that conversation there in the moment before that decision gets made. So I it's a scary thing. You know, your mind goes, you know, what do I say, to kind of help defuse this and, and kind of move the justice where I where I want him or her to go, but I just kind of try to, you know, calmly, give the best answer that I can not get offended by the hard questions and give a response that hopefully helps to make my case while also addressing their concerns. And I'll tell you, if you had pulled me after that argument and asked me to guess which of the justices were potentially for me and which were against me, I would have, I would have ranked that Justice pretty heavily against me based on that particular exchange. And when the opinion came out, we won his vote on our side of the case. So it was a good affirmation of the approach that I that I tried to take of just not writing up justices and treating them reasonably and assuming that they are they are open to persuasion and just interested in getting to the correct result.
Tim Kowal 48:18
One question that we like to ask the advocates is about the the nascent trend of tentative decisions or focus rulings by a panel where an appellate panel will let let the parties know, these are the issues that we would like address during oral argument. Can you give us your opinion on that? Is that good, bad or indifferent? Does it help you for oral argument? Would you rather be be surprised and and just answer the questions cold on the right there at oral argument?
Chris Schandevel 48:44
Yeah, so I guess it's I've never I've never experienced either. So I've never seen a draft decision released to the parties before. argument. I mean, to me, that's rare. And it was shocking to me that that was a thing that that happens out there in California. So that is you can confirm that is the thing. You can draft the opinion before it. Wow.
Jeff Lewis 49:03
There's one court in specifics division two of the fourth districts on Riverside and San Bernardino, they give you the draft opinion and then you decide whether to request oral argument are not okay. And there's some divisions in LA the second district that will give you a verbal, so I've had two or three occasions in the last three months where I've gone to oral argument before I can get one word out of my mouth. It's you know, Mr. Lewis, we preliminary agree or Mr. Lewis, we preliminary disagree. And here's what we want to hear. Yeah, it's here in California yoga kale and tentative opinions.
Chris Schandevel 49:37
Right? Yeah, not a thing here in Virginia, not something that I've seen the closest I've seen a colleague of mine at the AGs office. He's stood up as the APA Li on behalf of the Commonwealth to give his his argument as to why that conviction should be affirmed. And the judge based I guess, gave the oral the presiding judge said Mr. And it's funny my boss's last name was Judge so got very confusing. The judge said, Mr. Judge, if you sit down, right, if you don't say anything, we're gonna rule on your favor unless you mess it up. So he turned back around and walked to counsel table and sat right down didn't say a word. And the opinion came out that way. So I don't know, I think I would not love the idea of seeing the opinion ahead of time, because I think there's real value to be gained from the oral argument itself. I know a lot of people don't think that oral argument adds as much value. Maybe Maybe I'm young and idealistic still. And I think that it can on occasion, so I, I'd want to have that opportunity to make my case. Before the judges that argument, the focus letter, I think I'm more open to that being something I would appreciate. If the judges want to really focus on two or three issues, you know, and knowing that ahead of time would be helpful going into the argument. But yeah, I guess if the opinions were always in my favor, going in a guess it would be nice to know that but being on the receiving end of that, Oh, that would be that'd be hard. Yeah.
Tim Kowal 50:54
Yeah. There's a quote about writing that I've always liked that writing is the art of the second thought. And I thought that could probably be applied to appellate advocacy advocacy, writ large that appellate advocacy, good appellate advocacy is the art of the second thought. It's looking at the case, another time with a second set of eyes. And if that were applied to questions at oral argument that a good answer to a question or oral argument in any kind of question, that that really bears on the outcome of a case, you know, the the best answer is one that involves a second thought, not just the off the cuff response that, well, this fits into my talking points. But you know, going back to what you said a minute ago, really trying to to understand, you know, what the justice is what problem the the justice is trying to solve? And not just the answer that was gonna get me off of the of this pointy stick that the judge has just provided me with, but really get to the solution that's going to help this justice ripening in my favor, much easier to do that if you have time to give it a second thought, What are your thoughts on that? Do you did? Or is the tactic just to try to anticipate all the questions and develop your second thoughts before you walk into that room?
Chris Schandevel 52:00
Sure. I mean, the goal definitely is to anticipate as many of them as possible and go in having those second thoughts ready, ready to share with the judges and the justices, I think, the reality of brief writing, you know, in a perfect world, we would write perfect briefs, and we would cover all the issues and all the concerns, and the judges would read them and be persuaded one way or the other. But the reality is, I don't write perfect brace, I have holes in my arguments sometimes that I don't know are there, or I have page limits that forced me to not cover some issues to the extent that I'd like to, or maybe I'm writing for a majority of, you know, five justices on the court. But I know there's going to be another three or four that have concerns that I can't fully flesh out in my my written product. So having the opportunity to go to the oral argument and have conversations about those things that are left open or left unresolved by my written product. I just think it's so incredibly valuable for the judges and the justices. And I think hopefully, too, for the advocates that we go into them viewing them as an opportunity and not just viewing them as you know, a scary exercise where we're hoping to avoid snatching defeat from the jaws of victory. Yes, as I've seen attorneys do, right, that, you know, we can we can approach them differently. I think they can be a lot more productive, perhaps.
Tim Kowal 53:10
Right. Well, so it sounds like the answer to both questions. Do amicus briefs matter? And do oral arguments matter? are answered in the affirmative. And, and you brought receipts for both. And it's the same case, Klingler versus Attorney General, where you are the amicus, and you're the gave the oral argument that appeared to have made made the difference. So congratulations on that case. Well, Chris, you had some other questions that you're going to answer some some briefing myths. You mentioned that you had a list of top 10 briefing myths that I thought we would we would close by discussing those. And there are a few of them. Many of them. I think Jeff and I have probably both agree with there's a couple I had to I had some questions about but let's let's just get right to it here. So Christian DeVille. Is top 10. briefing, briefing miss all of us to come up here. And have you explained Myth number one, it's best to make your brief look like most briefs filed before your court. When I first read that I thought that's a myth. Yeah, so tell us why that's a myth. It's a myth that you should make your brief look like most briefs filed in your court.
Chris Schandevel 54:13
Yeah. So this is where we get to the controversial part of the podcast, right? We start, start busting bustin some, some brief writing myths. And hopefully we'll get some feedback from your listeners on some of these. Yeah, so when I started practicing law in the state AGs office, I started looking at the briefs my colleagues were writing and I started to realize it's pretty solid kind of look similar, similar practice that kind of grown up over the years of just what our government briefs look like, but you compare them to some of the briefs written by the professional, you know, printers that some of the private parties used, and our briefs were kind of ugly, they were dull, they were dry, they're boring, the cover page, you know, look like, you know, we just scratched it off the typewriter in a few minutes. And so I said, you know, our priests should look better than this. And um, so I played around with Word and threw in a couple of bars and The top and the bottom and you know made my font a little fancier for the Supreme Court of Virginia and things of that sort. And then I noticed that that trend kind of catch on within the Office of more attorneys were kind of using the same the same formatting that I was using for their briefs. So our briefs start to look a little bit nicer. But I think that's true, not just in the office that I was in there. But attorneys tend to be creatures of habit. And we tend to keep doing the same thing, the same ways for a long time. And oftentimes, we the temptation is just to copy what everyone else has been doing. Because you know that it's safe, we're can be pretty risk averse, folks. So if everyone's been doing something the same way for a long time, maybe that must be right and acceptable. So I'll just do it the same way. But there are real downsides to that approach, because you miss opportunities to make your briefs look nice to look readable, you know, if you just default to the same font choice, or the same style choices as everyone else. The caveat I'll give is that there are definitely attorneys who do it well and do it a lot. So my advice would be, don't just look at what most attorneys who practice in that court do in terms of structuring and formatting their briefs, find the attorneys who are there a lot and who are well respected practitioners. And for me, oftentimes that state SGS, they're before those courts on a regular basis, and they tend to have really nice looking briefs, well form, well formatted, follow the rules, etc. In terms of your common practitioner. A lot of folks, as you all know, a lot of times really trial level attorneys just kind of fallen their own cases up to the appellate court just kind of doing what worked for them below. If that's not always the best approach.
Tim Kowal 56:29
Yeah. So if you're going to copy someone, copy someone who's doing it at the top of their game, right, and just, you know, pulling out a brief, but what's the last brief that we filed? You know, 10 years ago, let's just pull that out. And without thinking filed the next breach? It looks the same way.
Chris Schandevel 56:42
Right. Exactly. Yep. So not as controversial as it sounds, perhaps, but that's the advice. Yeah.
Tim Kowal 56:47
Okay. Now, Myth number two, I think we're going to, I think we're gonna have some people log off. Number two times new roman is an acceptable font choice, that's a myth. Tell us why it's why times them and it's not an acceptable font choice, Chris,
Chris Schandevel 57:04
that is a myth. And I should say by except by not acceptable, I, that doesn't mean that you're gonna get sanctioned by a court. If you use it, you can get away with using Times New Roman, but who anyone who's taken the time to actually, like study font choices on the Seventh Circuit Court of Appeals put out an excellent primer on formatting briefs that I recommend to anyone in your audience, that listening to check out you can Google it and find it pretty easily. What you learn is these fonts were developed with specific purposes in mind. And times new roman was developed for newspapers. And it was the the letters are kind of crammed together in a way that allows for the typesetter to fit more words on the page and those little columns that they have on the newspapers and also designed in such a way to make it easier for the reader to skim the headlines, skim the front page article and get through that paper as quickly and efficiently as possible. At least for me, as an appellate attorney writing briefs for judges, I don't want those judges skimming through my brace as quickly as possible, right. So I don't want to choose a font that's like forcing and encouraging them to read my brief more quickly. I want a brief that's gonna encourage them to slow down, you really sit and understand the arguments. Yeah.
Tim Kowal 58:17
Skimming the brief is not the same as readability if a font is designed for skim ability, that's not the same as readability.
Chris Schandevel 58:25
No, it's not the same as readability so readability. So century school book is my favorite font choice. And the fact that the word book is in the name of the font is your clue that it's a font that was designed to be used in books, books are meant to be read, books are meant to be really digested fully and deeply, exactly what you want the judges to be dealing with with your brief. So that's why don't choose Times New Roman, don't encourage your judges to skim through your brief, pick a font that will encourage them to slow down, understand your arguments and hopefully rule in your favor.
Tim Kowal 58:54
Okay, an addendum to that follow up question to that. What about trial court briefs? Yeah, the same thing apply? Would you use century school book in a trial court brief?
Chris Schandevel 59:02
Absolutely. Yeah, we have an internal style guide that we suggest century school book for all of our trial level briefs. And again, so judges are busy. So there might be temptation to say, well, I'll just give him a skimmable brief so they can read through my brief more quickly. I know you want to fight that urge, give them something that will help them slow down and really grasp and understand your arguments might want to write a shorter brief to take less time out of their day. But you want them to read it carefully and pick a font that will encourage that.
Tim Kowal 59:26
All right, well run a little bit long. So let's power through the rest of these Myth number three, two spaces after periods is an acceptable choice. Now, what why is it not acceptable to use two spaces after a period? Yeah, so
Chris Schandevel 59:40
the best advice I can give you is open a book and look and see how many spaces are after the periods. All professional type. ciders pretty universally agree that only one space should go after periods. It's just kind of universally accepted for some reason attorneys be I guess being creatures of habit. We have fought that if you want to talk about like the practical impact on using two spaces, I think and some attorneys will say, Oh, it looks nicer, it spreads out my sentences. But the reality is it kind of slows down, the reader enforces some extra pauses in there that you might you might not want. So there's other ways to space the brief the pace of a brief without throwing all those extra unnecessary pauses.
Tim Kowal 1:00:17
What about extra spaces in between paragraphs, so I
Chris Schandevel 1:00:20
am an advocate of no extra space in between the paragraphs, I want my paragraphs to flow one from the other. Sometimes I'll do a little bit of extra space on top of a point heading when I'm starting a whole new legal argument in the brief kind of separate those out but yeah, paragraph and paragraph, I'm gonna do everything I can to connect those paragraphs using words like and, and but and so and so extra space, I think would would counteract that, in my opinion.
Tim Kowal 1:00:43
Okay, myth number four initial caps is acceptable for point headings. Chris, why is it wrong to use initial caps for point headings?
Chris Schandevel 1:00:51
It is wrong. And it again goes back to if you want your judge to read and understand what you're writing, and of course you do. So if you're writing goods, complete sentences for your point headings, especially in your argument sections of your brief as you should be the point had, if you use initial caps, that trains the reader, we're used to seeing, you know, three or four word phrases with initial caps. So the reader immediately senses Oh, this is a phrase because it's an initial cap. So the reader reads the first three or four words and thinks, oh, but there's more, there must be another phrase, well, is this a new phrase? So if you want, if you're using complete sentences, I'm like you ought to be you want the reader to know that based on the fact that you're not using all these initial caps and confusing the reader?
Tim Kowal 1:01:33
That's good. I haven't heard that that explanation for before. But that makes a lot of sense. Can you use topical phrases? Like, if I'm doing the procedural history of the case? Can I have a subheading that says summary of the district court's order and put that in Title caps?
Chris Schandevel 1:01:47
Yeah, so I will do some of that. In the statement of facts or statement of the case, I'll use more topical headings there. My argument section is always every point is as complete sentences. And it has to do with another big thing that I'm big on, which is storytelling, you want your table of contents to tell the full story of your case. And it's just much easier to tell a complete story of your argument. When you're using complete sentences, you can kind of get away with telling a story in the facts with some phrases inserted in there. But for the most part, even in the statement of facts, I tend to prefer the complete sentences to tell that story.
Tim Kowal 1:02:17
Okay, myth number five Microsoft words double spacing feature is true double spacing. So if you want to double spaced your brief, you just hit the double spacing button in Microsoft Word. Is that right or wrong?
Chris Schandevel 1:02:28
Yeah, little Little did you know Microsoft Word has been lying to all of us, Microsoft Word double spacing is not true double spacing, they add an extra 15% or so of whitespace in between the lines. So you get a lot more space in between your lines on the page, then you ought to be getting if you're doing exact double spacing. And the downside of that is it just makes it harder on the reader to move from line to line as he or she is reading your brief and easier to get lost. And so yeah, so we set all of our briefs and exact double spacing, which means we go into the paragraph settings, we get out of the double spacing that Microsoft Word sets, and we click that exact button. And then we'll set it to times two of whatever font size we're using. So for in 14 Point century school book, we'll set it to exactly at 28. Point. And again, it just improves the overall readability of the brief because you don't have all that extra extra whitespace. In between. I will add a caveat check your local rules, everything, all of these myths, if a local rule Trumps advice that I'm giving, you want to go with local rules, obviously. So
Jeff Lewis 1:03:24
although you know if the local rule says use Times New Roman, you should take a bar and go to a different jurisdiction.
Chris Schandevel 1:03:32
You should probably look up whoever's writing those local rules if your jurisdiction says that. All right, myth
Tim Kowal 1:03:37
number six, a shorter brief is always better, Chris, is that wrong?
Chris Schandevel 1:03:41
I think it's wrong. And you know, maybe I'm unique. And then I get to argue a lot of constitutional issues of first impression. But you know, I think if I turned in like a 15 page brief for some of these giant issues of I've recently briefed in the Virginia Supreme Court, whether their free exercise clause is more protective of religious freedom than the federal Free Exercise Clause and had to go through a couple 100 years of history, in order to make my arguments if I turned in a 15 page brief, without all of that history and just said, you know, you're on your own court, go look it up yourself, I have a feeling that, you know, the law clerks might have appreciated a short brief in the reading process until they then had to go and do all the legal research themselves, and might have liked to have gotten more from me as the advocate on that. So I think that, you know, brevity is valuable. But like anything else, it's a tool that we're given. And the ultimate goal is persuasion. And so if persuading the judge to do what you need them to do means you have to write a little bit of a longer brief on occasion than you should write that longer brief. If it increases the odds of persuasion.
Tim Kowal 1:04:38
Yeah, your brief should be exactly as long as it needs to be and not a word longer.
Chris Schandevel 1:04:43
Tim Kowal 1:04:44
All right. Myth number seven, you should structure your brief in the same order as the opinion you're appealing from or if you're like, if you're the appellee in the same order as the appellants brief, if the order you're appealing from is raises points. ABCD then your briefs just be ABCD but that's not right, Chris. I don't
Chris Schandevel 1:05:02
think that's right at all right. So and it's such a struggle as a young attorney, the temptation for me was always Oh, I'm the APA Li, I'll see what the appellants are human. And I'll just plug in my responses to each of those point headings, you know, 123, ABC. The problem with that is if they're doing their jobs correctly, they're leading with their strongest arguments, which means that if you're following their approach, you're leading with your weakest arguments, perhaps, and instead of leading with your strongest, so I always say start with the strongest lead with those. The caveat being if there's a threshold issue standing or something like that, that the court is likely to really be hung up on, you might have to lead with that argument just to clear the underbrush and get that out of the way. But for the most part, pick your strongest arguments lead with those and then refute the other side's arguments on the back end.
Tim Kowal 1:05:44
What if What if you know the panel is just really itching to know your response to their strongest argument? Because it Yeah, I mean, like you're being evasive if you drop it down to the end?
Chris Schandevel 1:05:52
And no, I mean, I think that's something that would be hashed out of argument, right? If I up at oral argument, it's clear that the judges really want to talk about this other issue first, and I had saved it for last, I'm going with them. And we're going to spend the first however many minutes they need to on that argument. But in my in my brief, I'm the master of my own brief, I get to leave with the stuff that I think is the strongest,
Tim Kowal 1:06:10
there you go. Myth number eight, you should never ever start a sentence with a conjunction. Chris, that's wrong.
Chris Schandevel 1:06:17
I mean, my first grade teacher might be surprised to hear that I think that's wrong, because I think a lot of us learned back in grade school, that that's not an okay thing to do. Again, go back to the advice I gave on two spaces, after periods, pick up a book, pick up a magazine, look at all the conjunctions that are starting sentences over and over and over again, I think my for our first grade teachers are trying to beat out of us that practice of you know, little kids like say, and then this and then this, and then this, and then this right. And so it was a reasonable approach. But unfortunately, we've taken it too far. And our briefs are much less readable, because we don't think we're allowed to start sentences with ands, and buts and so on. And so I'm all about using those connector words at the start of sentences.
Tim Kowal 1:06:58
Yeah, so the same grammar rules that apply to kids in grammar school don't necessarily apply to US attorneys.
Chris Schandevel 1:07:04
Right, exactly. And probably if we were paying more attention in grammar school, our grammar school teachers would have said, this isn't actually a grammar rule, I'm just going to help you write better, but we seem to have missed that part. And now we just we blame our grammar teachers for how we write
Tim Kowal 1:07:19
myth number nine, you should never ever use contractions in Legal Brief, but that's wrong to how Chris
Chris Schandevel 1:07:25
I think it's wrong to and that one might be a little bit more controversial. I don't use them often. But I will say I probably use them in just about every brief I file whether it's a state Supreme Court, Federal Court of Appeals, US Supreme Court, probably only a handful, two or three. But for me, it goes back to readability. There are some sentences that just read more naturally if you include a contraction, and this no contractions ever rule leads attorneys to bend over backwards to rework and rewrite and reoriented sentences to make them read away that we can avoid using that contraction, when the easiest approach would just use the contraction and move on. And you would gain a lot of readability. I think by doing that. And I'll give you a quick example. I'm a big fan of short, punchy sentences to really drive home points. And one of my favorite short punchy sentence sentences is when I'm following a point made by the other side, I'll say the government argues x and then I'll say, but that's wrong. And then I'll explain the reasons why it's wrong. And I will change as I but that is wrong. It just loses some force and some punch and some naturalness to it. So I'm a fan of including some contractions use do sparingly and use appropriately where it helps.
Tim Kowal 1:08:33
Right. Okay. And myth number 10 substantive footnotes and explanatory parentheticals are signs of good legal writing. That's yeah, right, Chris,
Chris Schandevel 1:08:44
I think that's a big myth. And yeah, when you first start reading legal writing, you might just assume that oh, I need to lard this brief up. But tons of big footnotes and lots of large explanatory parenthetical is for all of my case sites. Again, go back to readability, you want your brief to read like a good book, it's not going to be as interesting as a good book, we're practicing law. So there's only we only do so much within our limitations, right. But to the extent that we can make it more of an enjoyable read, the better and one of my favorite kind of examples to drive home the point about footnotes, forcing a judge to sit there and read a good brief if it's a well written brief, and she's reading along and enjoying the brief, forcing her to then, you know, jump down and read a big substantive footnote and then jump back up above the line to read the good content that she was just enjoying from your brief. The analogy I've heard, it's like having to run down stairs to answer the doorbell on your wedding night. Like you just don't want to force the reader to interrupt the good flow of your legal writing that you are given that reader by sticking a bunch of stuff in the footnotes. I try to avoid that as much as I can. I don't
Tim Kowal 1:09:44
like dark my eyes up and down, up and down. Sometimes I just get lazy and I see okay, there's a footnote. I'm just gonna keep reading and then when I before I turn the page, I'll just glance and see what's down there. Right and then it disrupts the flow either way.
Chris Schandevel 1:09:56
Absolutely. Yep. So to the extent that you can my I had a mentor who Repeat on my legal writing when I started writing briefs, and I can't tell you how many times on my paper on my briefs I get back and big, bold letters above the line above the line. She was always making me move stuff up above and that stick with me.
Tim Kowal 1:10:12
Yep. All right, you know, we're going to I mean, that's going to serve as the lightning round for today, because you gave us all your grammar tips.
Jeff Lewis 1:10:19
No, we're gonna have an abbreviated version of lightning round. We are running low on time, but we're gonna have an abbreviated version. One question. Are you ready?
Chris Schandevel 1:10:26
Let's do it. cleaned up.
Jeff Lewis 1:10:28
Your your three choices are everybody should use it lawyers and judges judges only or nope, no cleaned up anywhere.
Chris Schandevel 1:10:36
Everybody should use it. Absolutely. I am a huge fan of the cleaned up parenthetical i just i don't know i I'm a fan of following the blue book generally. But when it when following the blue book decreases readability of my briefs, I think it hurts persuasiveness, and gets in the way of, you know, what I'm trying to accomplish as an advocate. Now, granted, has to be used correctly. And so my fear is that attorneys are using it to make substantive changes and just saying Oh, cleaned up and not showing their work. It cannot be used in that sense. But in terms of, you know, dropping a bracket, or dropping a quotation mark, that you don't need, I'm all in favor,
Jeff Lewis 1:11:16
what a great barometer for either a law clerk, research attorney or judge to just take a test to see if this lawyer has credibility, take a couple of cleaned up quotes and see does this really say what he says? He says?
Chris Schandevel 1:11:28
Absolutely. So I think you have to earn your right to use that cleaned up parenthetical by using them responsibly, incredibly. And once you've shown the reader that they can trust your use of those things, that parenthetical is you're good to go.
Jeff Lewis 1:11:41
That's it popped up. You know, it's popped up, I think, once or twice in a US Supreme Court case, and it's popped up in one California published case, has it popped up in any Virginia published decisions?
Chris Schandevel 1:11:52
Yeah, I haven't looked at Virginia specifically to see if they've started using it yet. I'll have to see I'm expecting a decision from them by the end of June. And I certainly use it a lot in my briefs. So we'll see if any of that rubbed off on whoever's writing that opinion.
Jeff Lewis 1:12:05
Okay. Well, as we wrap up here, anything you also want to add that you think our audience might be interested to know about you or the way you approach appellate law.
Chris Schandevel 1:12:14
Just that I can't thank you guys enough for having me on today. It was a blast and a thrill. If there's anyone out there listening who either does appellate law and wants to just nerd out with a fellow appellate attorney or someone who's not yet in the appellate law space, maybe a younger attorney, or someone looking to make a shift free, find me on LinkedIn, reach out to me, I love to chat. I'd love to be of any help to any of your listeners as I can on those fronts. So I always enjoy talking about this stuff. And I'm so grateful that I got a chance to do this with you all here this afternoon.
Tim Kowal 1:12:43
Likewise, Thanks, Chris. And I like your motto about cleaned up, use responsibly. That's right. And that's gonna wrap up this episode. Again, we want to thank casetext for sponsoring the podcast each week, we include links to the cases we discussed from casetext daily updated database of case law, statutes, regulations, codes, and more listeners of the podcast enjoy a special discount on case text basic research at casetext.com/calp. That's casetext.com/calp.
Jeff Lewis 1:13:13
Yeah, and if you have suggestions for future episodes, please email us at info at Cal podcast.com. Please only use Times New Roman, Roman single space. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal and preparing for trial.
Tim Kowal 1:13:25
All right, see you next time. Thanks again, Chris.
Thank you all. You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases in news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at email@example.com or (714) 641-1232.
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