Judge Bacharach: 0:02

One of the things that does turn me off that I think would probably turn off most judges is personal attacks.

Announcer: 0:10

Welcome to the California Appellate Podcast. A discussion of timely trial tips and the latest cases and news cutting from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis: 0:24

Welcome, everyone. I am Jeff Lewis.

Tim Kowal: 0:26

And I'm Tim Kowal. In each episode of The California Appellate Law Podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of us are appellate specialists who spread out split our practices evenly between trial and appellate courts. We both work directly with trial attorneys to prepare cases for appeal. In this podcast, we offer some of that appellate perspective on various issues that arise in trial court and on appeal.

Jeff Lewis: 0:49

Welcome to Episode 12 of the podcast. Tim in Episode 10 of the podcast we discuss Charles Manson and a legal battle with one of his heirs. And in Episode 11 of the podcast, we discussed the Satanic Temple. I thought for this episode, we would lighten things up a bit and invite a judge to the podcast.

Tim Kowal: 1:07

Yeah, we try not to put too much on our listeners.

Jeff Lewis: 1:11

Today we're pleased to welcome to the podcast Judge Robert E. Bacharach of the United States Court of Appeals for the 10th circuit. President Obama nominated judge Bacharach on January 4 2013, and he was confirmed on a vote of 93 to zero. Remember the days when the senate used to do things and honestly, Tim,

Tim Kowal: 1:27

that's too long ago.

Jeff Lewis: 1:30

And before serving on the US Court of Appeals, Judge Bacharach was a US magistrate for the US District Court for the Western District of Oklahoma.

Tim Kowal: 1:39

Welcome to the podcast. Your Honor. I'm glad you could join us today.

Judge Bacharach: 1:42

Well, thank you, Tim. And Jeff is just a delight to be with you both.

Tim Kowal: 1:46

So your honor, you are I understand you come from Mississippi originally,

Judge Bacharach: 1:50

I do. So we moved when I was 10 years old, and the thriving metropolis of Oklahoma City. And so to be it's all pretty in perspective, Oklahoma City has always been a major, you know, thoroughfare for me, but I come from a small town in Mississippi,

Tim Kowal: 2:06

right. And so you're in the 10th circuit? Where are your chambers, Your Honor,

Judge Bacharach: 2:10

in Oklahoma City. And we have a pretty geographically dispersed circuit with over six states. And our court is actually located in Denver, Colorado, and so will almost always have our arguments located there when there's not a pandemic.

Tim Kowal: 2:26

Right. And just a little bit about your background, I understand you were as a practitioner, a commercial litigator? Correct. Yes. Right. And and we share one commonality we were we were both adjunct professors of civil pretrial litigation, so I will, I'm glad to be in in your company in that regard.

Judge Bacharach: 2:45

Well, it's so nice to hear that, that you had that experience as well. I just thought I did that some time ago. And I probably would still be doing that. I did that 1997 and 99. And in 1999, I was appointed, as you mentioned, as a magistrate judge, and I thought, well, I'd be better be focusing on this new position of being a magistrate judge and learn how to do that. And so I didn't continue to be an adjunct but I just loved that it was just so much but

Tim Kowal: 3:16

and one more background question before we jump into the interview, what did you What do you miss most about being a practitioner now that you're a judge,

Judge Bacharach: 3:24

you know, the, the the ability to we still collaborate among judges, but one of the really fun things I think, in in private practice was the ability to collaborate with your, with your colleagues and develop a trial strategy or appeal, what you want to focus on, say, is the appellant and, you know, the getting together and, and discussing and, and ultimately strategizing. And it just the thrill of competition, it was it was just really exhilarating, and fun, and, and I loved it.

Jeff Lewis: 4:00

All right. Well, let's, let's jump into the interview. Your Honor, you've written a book on legal writing

called: 4:04

A Judge's Perspective on Science and Rhetoric of the Written Word. And we're gonna include a link to the show notes and a discount code for people interested in getting a 20% discount. But tell us what motivated you to write this book on legal writing?

Judge Bacharach: 4:20

Jeff, when I was magistrate judge is most judges for both state and federal courts would be the case. My job really almost exclusively was consisting of research in writing and editing. And so I really doubled down in as a magistrate judge in trying to improve my own ability to write to enhance the clarity of my writing and the like. And then when I was appointed, as Tim mentioned in 2013, as a circuit judge, I felt that my words would become even more important. They were always Important in in the sense that that is so important, it is probably the preeminent responsibility of a judge to explain to the parties, why he or she rules. But as a circuit judge, now my decisions would sometimes being used as precedent, and they would influence other people. And they would affect exponentially more and more people. And I thought it was very important for me to try to improve my ability as a legal writer, and be in it, I thought that if I undertook to write my own book on legal writing, frankly, it would force me to be to enhance my own discipline, and to be even more studious of trying to improve my own legal writing ability. And then when I got into it, I knew of course, there are hundreds and hundreds of wonderful, wonderful legal writing books already out there, and more every day. And and so I was really trying to look for different outlets that would provide maybe different resources that we can all learn from, to improve our legal writing ability. And one of the things that I came across somewhat inadvertently, was this field of psychologists that have been studying cognition and cognitive fluency for a number of years, number of decades.

Tim Kowal: 6:26

Yeah, I think you refer to that as psycho linguistics in your book.

Judge Bacharach: 6:31

And I just became fascinated, because as you and Jeff know, is, especially as appellate advocates, you're always thinking about your audience, if you if you know, the panel that you're addressing, or as a trial judge, and trial court who your project is, you're constantly thinking about your audience, or if you write a letter to a client, you know how he or she is going to react to the words that you express on the written page. And it was fascinating to be Tim, that there is this discipline of psychologists that are empirically studying, testing, and deriving data about how the brain processes written word. So as we think intuitively about how an appellate tribunal may react to an appellate advocates words, here are people that are that with that are trained in psychology, that are actually studying empirically, how people react to using simple diction versus versus bigger words, or using legalese versus plain English short,

Tim Kowal: 7:39

right, right. You never want to send your reader to the dictionary.

Judge Bacharach: 7:43

Right, right. It just all of these different dimensions that all of us struggle with, and in strategize about and think about, oftentimes, intuitively, that these are people that really have empirical data, that we can derive lessons and apply to our day to day legal writing. And then the other dimension that I became increasingly preoccupied with was oratory, that of the hundreds and hundreds of legal writing books, wonderful legal writing resources out there. I began to think about the great communicator communicators orally of our past that are not lawyers, and people like FDR, Luther King, Jr. and in a variety of orders, Winston Churchill, and what is it about their oral communication, apart from their delivery, that we could apply to our day to day legal writing? And perhaps, that there are lessons and, to my surprise, many of the things that I saw in the great oratory of our past of some of these just incredible oralist also happened to mirror some of the lessons that were that were derived from psycho psycho linguists. And using simple language is one of the many examples. And so I tried in my book to derive lessons both from psycho linguistics and from oratory, as well as some prominent examples of advocacy or judicial opinions from some of the more notable oral advocates and judges that we've all admired their writing.

Tim Kowal: 9:30

Yeah, I was I was fascinated by that approach. And you do cite a number of studies from psycho linguists and I have some questions about some of them and some observations having thumbed through much of your book. And if I had to pick the overarching lesson of your book, legal writing a judges perspective, it would be do not fatigue your reader. So for example, I picked that up right on page one of your book, when you make the observation that legal writer should always bear in mind you quote you say quote, legal writing is too Typically read out of obligation and quote, and I thought that was that was such an excellent observation. I'm always going to keep that in mind now and and in your chapter on sentences talking about how to craft an effective sentence, you offer several ways that writers can ease the readers burden when working through their briefs. And I just think this is such excellent advice to keep in mind when particularly when writing for a judge who is not coming to your brief because they picked it up in the bookstore and they had a thrilling looking cover and great blurbs on the back. It's because they're paid to do so. So I wonder if you could, could you talk a little bit more about that having to read out of out of obligation? What do you What are you looking for? What kind of things really turn you off when reading a brief?

Judge Bacharach: 10:41

Well, one of the things that does turn me off and I think would probably turn off most judges is personal attacks on either the opposing counsel and it's really surprising as an appellate judge, how often there is advocacy. I think sometimes they be crosses the line in criticizing the district judge or the magistrate judge who's acting on behalf of the district court. Now you're always is an appellant, you're always going to be criticizing the substance of what the the district court or you know, or agency has said, as an appellant, or, or in a petition for review. But it's surprising sometimes that there's an implication or sometimes even an accusation that the judge is biased and unnecessarily. Now, sometimes you are asking maybe for reassignment to a different judge. And you really have little choice, but to say that the judge is biased and have no, I'm putting those situations to the side, because that is relevant. But sometimes it's just an accusation that the judge is intending to get it wrong, is intending to favor one side or the other on the tape. And that is just so counter productive, just as it's counterproductive for an advocate to personally insult the opposing counsel, because the judge is not King Solomon, the judge is just trying to decide what is legally correct. And if you think about the goal of the of the reader, a judge trying to get the legal decision, correct accusations against the district court judge, or even the adversary, or the opposing party, oftentimes, is countered to the purpose of the judge. And so I think that is probably the number one pet peeve that I have. And probably, I don't purport to speak for other judges, but I suspect a lot of judges say the same thing.

Tim Kowal: 12:52

Right. Well, here's here's one example of that you mentioned in your book of a way that legal writers can ease their readers burden. And you caution attorneys to pay careful attention when they structure their sentences, because a sentence that confuses or frustrates a reader at the beginning of the sentence typically will have no reader at all, at the end of the sentence. Is that your experience in reading attorney briefs that if you are if you enter into a sentence that is poorly crafted and confusing, that that possibly you just wind up skimming and going to the next sentence and hoping the writer is going to get it right the next the next time around?

Judge Bacharach: 13:28

I think that's right. Yeah, one of the two things I think is going to happen in most instances when a judge or any reader struggles to understand what they have just read one is, they may just give a well, there's several scenarios. A second scenario is they think they understand the Vaughn. But they are Miss evaluating what the argument is they, they they've they are confused, but they don't know that they're confused. And then the lastly is what happens I think more than the first few cases is the judge will and I think most judges are genuinely trying to understand they will go back and reread what they've already read. And when you do that, you've destroyed the momentum of your argument. And I just think that's poisonous to persuasion. So one of the things that I think differentiates really skilled advocates from less skilled advocates is an appreciation for wanting the reader to not have to pause or go back and reread what they have already read. Psycho linguists tell us that the most readers, legal readers, non legal readers, academicians, all readers will tend to process what they read with what they already know. And so one of the lessons that I think we can draw on as legal writers is to Try to put old or familiar information before new information, because that's how readers will naturally and effortlessly process what we what we read. And so when we put new information, and then really don't flag to the reader, any signal to what we've already said, readers are forced to navigate directly between new pieces of information. And that may be well crafted sentences. But it's counter to the way that we, that our brain processes written language. And so it sometimes will impede the clarity of what we're saying. And in a way, that's not necessarily apparent that it's just, you know, poor word choice or anything like that. It's oftentimes not the case, it's just a lack of appreciation that readers struggle sometimes when you're navigating directly between new pieces of information.

Tim Kowal: 15:57

Yeah, I find that can be very difficult, very difficult challenge in writing to, to make well crafted sentences, paragraphs, and entire arguments that that don't offer don't require the reader to absorb too much new information all at once. But also to do to be persuasive in a way that that is not redundant. And you're not restating things over and over again, because you are assuming that your reader cannot understand the basic gist of your argument, I've. But in my experience, I found the only way to avoid that is to write the best you can put the brief away for some time, you know, a week or two if you can, and then come back to it. And then suddenly, you're the reader and you're no longer just the writer, you're the you're the reader because you've probably forgotten what you've written. And if you can absorb it and understand it as a reader, then maybe a judge can too.

Judge Bacharach: 16:44

I think that's wonderful.

Jeff Lewis: 16:46

Send it over to me, Tim, I'll clean it up for you. I'm happy to always happy to give a cold brief a read for you.

Tim Kowal: 16:52

Yeah, but you're gonna send me a bill, Jeff.

Jeff Lewis: 16:54

That's true. Hey, Your Honor, I have a question for you about something Tim and I sometimes disagree on when we collaborate on briefs, and that is the use of the paratheoretical cleaned up to signal to the court, you're citing authority, and you've stripped out all the parentheses and citations to an internal punctuation and you just have the words, do you or does the 10th circuit have a judicial preference on whether parties use cleaned up in when citing materials,

Judge Bacharach: 17:24

you know, that it's such a new idea that, and I that I'm not really sure how many of my colleagues have, you know, confronted it yet. I have seen that and some I use it from time to time, and I have seen that in some of my colleagues opinions. But but it is so new that I just don't know that a lot of people are really seriously considering that yet. I I'm I like it, you know, sometimes particularly you know, it's one thing if you have a, say a bracket around one suffix or something like that, but sometimes is is is you know, sometimes it is become so cumbersome, that there's brackets around every other, you know, part of every other word, and, or changing capitalization. And sometimes it becomes so distracting that Yeah, when I came across this idea of, you know, just saying cleaned up, I thought what a great solution to that.

Jeff Lewis: 18:28

But I love it, you know, driving to my house, you got to hit four speed bumps to get to my house and it's GGG GGG and cleaned up takes away the speed bumps, you know, it just though it gets everything away from from just understanding and reading the words, but some past guests. I think, Tim, I don't want to speak for Tim but some past guests that have said, well, there's a difference between when a judge wants to use it and put an opinion it's okay, because you could trust that the judge has done the research and is quoting things correctly, etc. But when you use it as a practitioner, or to a tribunal, you're almost representing "Well, I've cleaned it up, trust me" in terms of where this came from. And trust me that I've done the right thing with the commas and the ellipses, etc. So do you have a preference as opposed to using it yourself, but whether it's okay to see it in a brief that a party has written to you?

Judge Bacharach: 19:15

I really haven't. That's really an interesting comment that some of your guests have said I don't want to, you know, disagree with necessarily with any of your past guests that have given more thought that I have, I will just tell you that it never crossed my mind. Okay. All right. I'm gonna read your cases anyway. So you know, if you pulled a fast one, that I just think that was be so unlikely that you would, you know, that you would change the capitalization for example, or change the form of the verb in, in in change the substance of the parenthetical. I just think that's better. Little bit, baby tis skeptical. Okay,

Tim Kowal: 20:03

well, well just question reminded me of another's sorry to step on you there, Jeff. But you reminded me of another question, I wanted to ask the judge that you gave an example from an attorney's brief and in in your book legal writing a judges perspective. And this example gave me a visceral response on page 60. In your section talking about the effective use of punctuation. You you cite from a case where there is a one word sentence, and I found this very jarring the sentence was, the verdict in this case is inexplicable, period, literally, period. That's the end of the quoting how to read and and when I read that in phatic, word, literally, I took it as a dare. My reaction was, Oh, yeah, I was viscerally motivated to disprove that strident claim. And I'm sure that was not the intended reaction of the writer. And I wonder if you see that as, as a judge, reading briefs, attorneys making claims meant to be crisp and bold and clear, but maybe unintentionally striking you as perhaps too glib.

Judge Bacharach: 21:06

Sometimes, you know, I think we're all probably guilty, sometimes advocates and judges of being a little bit too late, it is serious stuff. And you do want to be clear, you do you know, one word sentences, I think can be very effective. But only I think, if we keep in mind, the the way that they become effective, and that is to enhance the stress of a particular point. You know, if you have 10, one word sentences in a in a 10, page green, it will become really apparent. And frankly, most of us would think, Okay, well, the author is showing off, whether it's an advocate or a judge. It's, it's making it about them. And that's never effective, whether it's an advocate or a judge doing that, but but when it's done sparingly, and it's done strategically, I think it can be effective. But you do have to be careful about trying to avoid being glib about, about having the reader Thank you, you're just trying to, you know, to broadcast how clever I am in, in being able to use these one word sentences. So I do think you have to do this sparingly. But sparingly utilized, I think, either one word or short sentences, when used to particularly cap, you know, to, to, to capitalize on the emphasis on particular pieces of information can be valuable.

Tim Kowal: 22:45

Yeah, but let me ask you another question. This This may be this may be will will put you at odds with Brian Garner, because something you you wrote in your book, legal writing a judges perspective made me think of something Brian Gardner said, Now you were offering several, several practical examples how to make writing, less taxing on the reader, such as one example was preferring concrete nouns to abstract nouns. So for example, you cautioned writers to talk about, quote, shareholders who are anxious rather than, quote, anxiety among shareholders, because shareholders is the thing we can visualize a thing. Anxiety is an abstraction. We don't know what anxiety is, we just know it makes us feel anxious, which is a feeling we don't like to be reminded of when we're reading a brief. So that and that reminded me of this distinction between con concrete starting a sentence in concrete terms rather than abstractions reminded me of Brian Garner's advice not to begin a sentence with the word. However, Brian Garner said he thought, however, was too ponderous a word. I'm not so sure. I think it's I think lawyers are fairly comfortable with it. But in deference to Mr. Gardner, I avoided anyway, where do you come down on beginning a sentence with the word however,

Judge Bacharach: 23:58

I don't, I don't maybe a little bit for a different reason. I don't like starting a sentence with however, I would prefer to use, but but only because however, is used in an ambiguous way. However, the court I think, he just said this wherever you come out on this, now, that is used in a way that is unlike a lot of times when you start a sentence, you know, however, the the the batter struck out, you know, as a synonym for but, right, because when, when you read words, this is not to keep harping on lessons from psycho linguist, but they tell us there's this immediacy principle, which is just this basic, convoluted or highfalutin way of saying, when we read words, we attach meaning to them immediately and when you read, however, if the start of the sentence, you don't know which way it's going to which way it's going to be utilized, you know if it's going to be however the court comes out or however, is a contract. To what you have just read. And so I think he I think he does have a good point that it is a little bit more ponderous than but but I think the more to me the more significant counter argument to utilizing, however, is there's an ambiguity that is just not present when you use the word but

Tim Kowal: 25:21

right. And I think that also goes to careful and precise comma usage, because that comma will signal which way you are using the word however true. What about Jeff and I have also talked about the use of acronyms, maybe maybe technical jargon or legal jargon. In brief, sometimes trial attorneys. I'll put this on trial attorneys. I suppose appellate attorneys will do it too. But you tend to get invested in your case, you understand a lot of the technical jargon that's involved. And then sometimes you may forget that the appellate judges won't know what the heck you're talking about, unless you give them a nice laypersons understanding. Do you have any any comments and advice to practitioners about how to use acronyms and jargon in a way that practitioners can be precise, but avoid overly taxing the reader?

Judge Bacharach: 26:13

The, if you can avoid an equity of do it, and 99% of the time, I think we can avoid acronyms. Now, I'm not saying if you avoid FDA, or the FBI, I mean, these are acronyms that everybody in the world knows what they are. But, you know, when you have, you know, I'll just take a silly example for Bilborough Company, Inc, Korean FMC AI. You know, a lot of times the acronyms that we judges and lawyers, practicing advocates utilize our candidat, you know, we you can, it may be the first time you call, you refer to the Ford Motor Company, Inc, maybe you refer to the full day, but if you say Ford after that, nobody's gonna be confused about what now if there's two related Ford in these Baby, you do have to do something. But even then, it's a lot if once an LLC and once an incorporation incorporated entity, you know, you can refer to the LLC or limited liability company and the corporation. And it's just a lot easier for people, particularly for appellate courts, speaking experience, that are diving into your case, and we have no previous exposure. And it's, it's, it's countered it counter effective team to advocate to make the flip to a glossary, or worse to go back to the previous page. Okay, did they define it on page 11? Or, okay, going back to page 11, maybe they, okay, go with 10 is not defined. Okay, page four, and flip back to fourth. Okay, now, where was I? Okay, I was on level, I'm going from, you know, we're buyers. We're on page 11. And when you do that, again, you're making me work, which is okay, you know, that I'll get paid to work. But what you're doing that diminishes the power of your persuasion is. Now I'm trying to remember what argument you were building up to, I'm spending my mental energy, just trying to figure out what entity you're talking about. And that's just totally unnecessary. And so I just think whoever invented the idea of equity in legal advocacy, I wish they hadn't done it. It's just a bad thing.

Tim Kowal: 28:45

Okay, here's something else from when I was reading your book legal writing a judges perspective and, and just be the reason I keep repeating the name of your book is because I'm following the frank luntz rule that you have to repeat the name. If you want someone to remember and go buy a book, you have to repeat it seven times, or else they won't remember to buy and read legal writing a judges perspective,

Jeff Lewis: 29:04

we just refer to it as lw ajp.

Tim Kowal: 29:10

Yeah, I think I don't think that was going to get out of this committee, Jeff. But in reading legal writing a judges perspective, I learned something I didn't know about crafting sentences. And this is again from from psycho and linguistics. I take it on page 57. You state that quote, the most emphatic part, virtually any sentence is the ending, where the readers focus typically sharpens, we should thus generally try to use the end of a sentence for what you want to emphasize and quote, and then you give the example of the second half of Churchill's famous sentence about having nothing to offer but blood toil, tears and sweat. And frankly, I wasn't aware that there was a first half to that sentence. So I suppose a merely serves, as you know that the first half of that sentence anyway is merely served as the plinth for the statute of words that Churchill erected upon it. So your observation that Readers should focus more on the end of a sentence than the beginning is one that's going to stay with me.

Judge Bacharach: 30:08

One of the things that that the garden psychologist had said in this is it a full explanation for that, but I think it is partial explanation is they describe some random effect. And that is, when you come to a semicolon or more, so you come to a period, even a comma, that what these cognitive psychologists tell us to do is that readers will without any intent without any conscious design, we will slow down when we come to this, say a terminal punctuation mark, because they're the explanation is that they give us is, we're trying to make sure that we've understood what we've just read before we move on. And if you take say, in the book that I've mentioned, there was a 305 word sentence from Martin Luther King, Jr. in letter from Birmingham Jail. And he breaks it down into 12 chunks. And I think that would be an example that if you read the first chunk, and then he has a semi colon, and he divides these 12 chunks, primarily the semi colons, you see kind of what the psychologists are talking about, that we will without any intent, we will slow down to make sure that we understand what we've just read before we move on. And that's why they tell us that when we're doing peripheral vision that we see that there's a punctuation mark, particularly terminal punctuation, like a period that our eyes will slow down when we get to the to the to the near the end of that clause or the near the end of that sentence.

Tim Kowal: 31:47

Now, one thing that I thought of when reading that passage from Martin Luther King, Jr. His speech that you included in your book was that I had a little bit of trouble adapting, because obviously that's that was very effective and storing oratory, but adapting that the lessons at work and that oratory to a Legal Brief. I was I was having trouble doing it. Because if I were like, if I could imagine being being in a judge's shoes, reading something that I took to be as artful oratory, I might, I might gloss over and say, Okay, well, let's get back to the nitty gritty, I'm going to skim until until you're finished with all the semi colons and get to a period and a new paragraph and where legal arguments going to start again. But what what well, what would you say to that?

Judge Bacharach: 32:32

Well, it's it's a completely fair, a very good comment to the point that that I'm trying to make with the letter from Birmingham Jail, primarily is the the value of breaking information in a descriptor, discernible chunks, grouping, process information, one familiar unit of information at a time, nothing, few few people are going to either judges or advocates are going to be able to use this sort of soaring rhetoric in that sentence that will be productive, and in persuading anyone, whether it's a judge or an advocate. But I do think that if you break information down into manageable chunks, sort of like what we break our telephone numbers into three digestible chunks in three digits and the area code surrounded by punctuation, prefix before a dash four digits after the dash, that I think you can, you can replicate that idea from letter from Birmingham Jail, not necessarily the soaring rhetoric, but breaking the information and to 12 this discernible, Chuck's maybe you don't want to write a 305 word sentence. But but but you can use long sentences to great effect if you break the information in insurmountable chunks. And that's the lesson that I would hope could be drawn from a letter from Birmingham Jail.

Tim Kowal: 33:58

True that that makes sense. I had another question. When I was reading your section on what you call throat clearing those those kind of nice sounding but meaningless expressions that that precede the main thought of a sentence like it is clear that or it's worth noting that or we respectfully suggest that and I would agree with you that that in the main You know, that's that's to be avoided. But it brought to mind that maybe there are some exceptions. And I recall one of my favorite anecdotes about writing is I don't remember the author but the author was asked why he had left a comma in this sentence It was after dinner, comma, the man went into the living room. And the author the author's charming explanation to this was this particular comma was a way of giving the men time to push back their chairs and stand up. And I thought maybe that maybe something similar can be said for throat clearing that maybe it gives the reader some time to to sit on and absorb the meal that that he just digested in the previous vs paragraph or thought before launching into a new thought represented in the new sentence, a new paragraph. So I wondered if your if your admonition against throat clearing would permit an exception like that for that? No, I

Judge Bacharach: 35:13

think that's a really good observation. You know, oftentimes, let's say you're writing a letter A to opposing counsel, for example. You know, generally, I do think it diminishes the clarity and impedes communication when you use throat very good, necessarily. But I think your point is very well taken to him that there are exceptions to virtually every rule. And I think this this one, as you point out, is 72 exception, sometimes you do want to soften what you were saying, whether it's in a letter to opposing counsel a letter to a client, or even a brief that, you know, maybe you do want to say, use throat clearing. We do this into sense all of the time. You know, I feel that our I believe that the majority is mistaken on this point. Well, you really don't you know, if I'm right, it, it's it, it's really putting implicit that it's my belief in that, to some extent is throw Cleary. But maybe I do want to just not accuse the majority of being mistaken and want to flag the fact that it's just my opinion. It's just my belief. And so I think all of us do this, maybe intuitively. And I think your observation is very well taken.

Jeff Lewis: 36:33

Now, although other Tim, if you're writing a sentence that gives you such indigestion that throat clearing is necessary, rather than clearing the throat, maybe need to take a second look at that sentence that's causing the digestion, send it on over to me, I'll clean it up for you. But

Tim Kowal: 36:49

as much as I hate the suggestion that any of my work needs editing, I do think that's, that's actually a very good point.

Jeff Lewis: 36:56

Let me, let me ask, let me ask a different question. Here. A recent Ninth Circuit case got some attention in a lot of the websites that I read, I read a lot of nerdy websites. And the Ninth Circuit got attention and opinion that referred to the Star Wars sequels as being mediocre. And it was completely unrelated to the merits of the lawsuit. It was just kind of a pot shot at Star Wars and George Lucas and Disney. And the question I have for you is you write in your book about maybe cautioning against using too much artistry, or pop culture references. Do you have any any feelings towards judges that put in references to pop culture?

Judge Bacharach: 37:39

I do, Jeff. And I do want to mention, and I really don't want to criticize any other judges, advocates, any other legal writers. So I'm just gonna sort of couch my answer in terms of for me, for Bob Bacharach, I do try to avoid pop culture references. I try to avoid humor, I like to think that I have a sense of humor. But the problem when you use pop cultural references, and and humor in, in either a brief or in a judicial opinion, which is I guess what we're talking about is I doubt that any of your clients or teams, when you have an appeal in a Federal Circuit Court, think it's funny, or or or think that it is something that should be discussed. in the same breath of whether the judge likes the Star Wars movies, oftentimes, their appeals are the only time that they will be interact with the judicial system at all. If they are in the Ninth Circuit, it must be very important to at least one of the parties and probably both of the parties. They probably heard a lot of time and a lot of expanse. And I think if it were me as the party, I've never been a party to a lawsuit or litigation. But if it were me, I don't think I would find it funny or humorous, that judges are talking about something that is really important to me. And they are talking about whether they like the Star Wars movies. I just it just it just something that again, without any criticism of other any other judges. It's something that I'm never

Tim Kowal: 39:32

from from your perspective. Sorry, Jeff. From your perspective on the bench, when you see it, it seems to me a trend that we are seeing a little bit more levity and pop cultural references in judicial opinions. If that's true, do you perceive that that is influencing members of the bar to infuse more of that kind of levity and that jocularity into their legal writing?

Judge Bacharach: 39:58

I do. I do. You know, it's it's, you know, that we none of us have a monopoly on, on humility, or or or we all get diverted to different sort of goals in our legal writing. One of the things that lawyers are frequently criticized about is what I mentioned earlier about ad hominem attacks. And then you see, judges using ad hominem attacks, either in a majority opinion or in the sad, sometimes what I talked about advocates being overly critical, almost in a personal way that the district judge sometimes you find that in the majority opinion, reversing the district court. So judges have insane, you know, judges are perfect, lawyers are perfect, none of us are perfect. And I do think that that sometimes his his hypocrisy among, you know, among all of us, sometimes we're all hypocrites sometimes. Sure.

Tim Kowal: 41:04

I wanted to go back to another very practical suggestion that you make in your book legal, legal writing a judges perspective, and that is to use descriptive headings in your brief.

Judge Bacharach: 41:14

This is on page 26. you're citing more studies from psycho linguistics, that state that the multiple studies have demonstrated that headings assist readers mental organization of upcoming paragraphs. So as a judge who reads briefs, how important is it to you to see a well organized and articulated Table of Contents with headings? It's very important and you know, if I see a brief or a judicial opinion, that is you know, Roman numeral one back round number two discussion or analysis, three conclusion. I feel Highfield that is just is an opportunity that is bypassed. There's an example in the in the book that I think I use from Gregory Gar, in a case called us versus Zuckerman, where he's arguing that a $10 million fine is substantively unreasonable. And if you just track, I don't know, break regard. But if you track his headaches, they're all simple declarative sentences. You don't have to worry read a word of prose. Can you know what his argument is? That that it's that it's in excess of the applicable guideline, fine, without any compelling justification, etc, in the you go through these headings, and you know what his argument is. And so when you read under Roman numeral one or two, a or three, a one, you know what you're looking for. And so it's so intuitive. It is borne out by by psycho linguists that tell us that informative headings, there's a study that I think that I refer to refer the team of linguist Robert Elizabeth Forge. And another study by Robert George in Haryana, that have said that informative headings a the readers ability to recall what they have read in, in, and there was another study that shows that it enhances the readers ability to summarize the content of what they have read. And I think that those, you know, those those studies are just really common sense that if you read a heading, that that flags the point that the author is trying to make in that section, that that that that will provide a valuable tool to the reader. And I don't know why the Supreme Court ever created this, this convention of, we're just going to, we're going to try to make it as esoteric as possible. We're going to say one to two a, we're not even going to use any any words, we're just going to try to make it as opaque as possible. And it's in the DC Circuit utilizes that number of judges utilizing it again, I'm not a critical buddy judges, right, just for me, it just, you know, I just think we use everything that we can legitimately use to try to make it as easy to understand as we can, and the more opaque that we make headings. The more we're defeating our ends of trying to make our pros as judges or advocates easy to understand that.

Tim Kowal: 44:27

In your experience, are most attorneys making use of well organized tables of contents and well articulated headings or are they is this an unmined? vein?

Judge Bacharach: 44:36

It is? It is my ID I haven't really thought too much about the percentage but on roughly I would say it's about half and half.

Jeff Lewis: 44:50

Tim, don't tell our opponents will start using the Table of Contents effectively and be better advocates. It's better that we just use effective table of contents and our opponents never do.

Tim Kowal: 45:00

Well, we'll edit this part out.

Jeff Lewis: 45:02

Okay. Let's shift gears here. I want to talk for a minute about oral argument. Now I practice primarily in the state courts of California, I don't do too much federal work. And in the state courts here, everybody has the right to oral argument, unless both sides write a piece of paper saying we waive oral argument that never happens. And my question for you is, from my perception, when I show up to oral argument, justices have already made up their mind. They don't want to hear from me, whichever side of the V I'm on. What is your perspective on oral argument in your court system? And how practitioners like us should approach oral argument?

Judge Bacharach: 45:39

Well, as a great question, Jeff, so when we let's say, in our September term, a lot of times in our September term, we may we typically hear six cases a day, and usually maybe four cases of in four days, that term. So we'll hear, say, 24 cases. And so when I prepare in every one of my colleagues prepare, we have to go with the idea that that we are candidate, we have our tentative votes, based on our pre argument study. And, and I really had never thought of that until I got appointed Jeff. But the reason for that is if I go to every one of my arguments, and after six cases that we retire immediately, we don't even have lunch, just that in it, everybody will do the same thing, all surrogates, we immediately go to a Roby group. And we immediately sit down, start discussing those cases in voting. And if I show up and say, you know, I, I came with an open mind. And so I really haven't decided how I'm going to vote on any of these cases. I can't get assigned authorship. And that's really, you know, that a front, it is not fair to your colleagues. So the unwritten rule is, you have to come with a tentative vote. Now, that sounds very, you know, very much like our minds are made up, but they're really not. Because you can persuade me and I have changed my mind a lot, Jeff, in oral argument, and particularly, because our conferences will oftentimes last two hours or more after the oral arguments, and those typically will, will begin from where the oral arguments flipped off. And so I'm a you may be representing an appellee. Now, I think, you know, okay, I came in, I heard myself say this a lot, Jeff. I came into argument thinking that we ought to reverse. But But, you know, the appellee made an argument that I really hadn't thought about a little bit, but I don't necessarily think I gave enough consideration to it. Or, you know, he pointed out that in Jones versus Jones, the court had said, this, and I really hadn't focused on that part of Jones versus Jones. And even more so than that, Jeff, because obviously all all of us in Dubai knowledge all circuit courts, and probably lots, most state appellate courts will take it under advisement. Even when we go back, I have, I have changed my mind in drafting opinions, a number of times, I repel which one which case but I remember writing one opinion, at already completed it, I'd already had all by Kurtz editing it, we had checked it for typos. I was reading it one last time before I circulated to my colleagues. And I changed my mind in my very last read. And so I ended up sending my colleagues at a burn aversion to affirm an aversion to reverse and I won't say which one I subscribed to. I said, I'm gonna go with this opinion. But if you want to use the other one for the Set, Go ahead, because I had already written it.

Tim Kowal: 48:59

No, it all came down to the printer. Hmm. You know,

Judge Bacharach: 49:04

sometimes we'll get comments from one of our colleagues and say, You just said and we all really do try to keep an open mind until the thing is filed. And even then, when we get petitions for rehearing, we try to take a hard look at those. So it it does seem like like, probably like all of this ever minds made up. And sometimes that is true. But sometimes I think I have made my mind up and I end up changing my mind. Well, well, I

Jeff Lewis: 49:37

gotta say, I'm super surprised by that because you know, certified a specialist, we have to take a lot of extra continuing legal education. And I hear a lot of appellate justices speak on the subject, they may well sometimes not realize the mic is live or recording and they'll say, yeah, oral argument just doesn't matter. It doesn't matter most of the time, and I'm just I guess I'm heartened to know that all of our rehearsal and practice and Going up to oral argument at least sometimes matters.

Tim Kowal: 50:03

The client should pay your bill. Well, let me ask you a follow up on that. If I may, judge. Bacharach, you mentioned that, that that oral argument does change your mind, oftentimes. And I wonder, probably, I'm just going to assume some of those times maybe there was an argument raised on oral argument that was maybe not developed as well as it could have been in the briefs. But I wonder if there was a time when the the briefs were were were just fine. The arguments were all there. It was just maybe there was something another a different kind of expression to the same argument that was made an oral argument that that made the difference? Are there cases where there are not new arguments? Because obviously, if it's a new argument, you're not supposed to raise it at all. But maybe there was just a different expression or spin or mood of that argument that was offered during the hearing? Is that is that the case? Sometimes?

Judge Bacharach: 50:58

Absolutely. Tim, and many times, it will be something that we have. It's the same argument, as you mentioned, you really can't present new arguments in oral argument that weren't raised in the race. But sometimes, oftentimes, it will be the same argument. But you're listening to it with fresh ears. And it's sometimes the way it may be sometimes. This has happened quite a number of times. Tm, where I listened to an argument, and I'll, it'll hit me that I had Miss evaluated what the argument was, I thought that they were saying that there was not enough evidence to support a conclusion and what they were actually saying, and they might clarify it. No, we're saying that there might very well in the end, but the judge just didn't adequately explain it. And maybe it was a review from an administrative decision that that there was an inadequate explanation as opposed to insufficient evidence to support it. So sometimes there's just a clarification of the argument. And then I'll go back and reread it. And I'll say it I'll realize, yeah, I'm Miss read it in. You know, it I now see ya. There is enough evidence for it. But yeah, there's an inadequate explanation. So sometimes it just runs the gamut. Or sometimes it's just listening to the same thing that I've already thought about. What about with different different years?

Tim Kowal: 52:26

Yeah. What about this as another possibility? Maybe the the appellant just simply raised too many arguments in the brief. And, and it didn't get as much focus, because because maybe you thought that the case should be decided on an issue a but but actually is you see, on second thought when it was raised again, at oral argument, that really is the the dispositive issue in the case, in that kind of thing

Judge Bacharach: 52:51

does happen a lot, I might look at something and think, Oh, this, there's no formal order here. And, and, you know, I'm a fallible human being, damn, and so have a look at that and say, you know, I'm really getting the, you know, they argue in the alternative, you know, x, but say the appellee argues that there's no appellate jurisdiction and the alternative, they argue the merits, and I think, oh, they're absolutely right. There's no appellate jurisdiction and something that I learned about in oral argument, something has been rescinded, or whatever it is. And I realized, oh, now, even though I studied it, I had a distorted lens when I was studying the merits, because I all along, I thought that I was going to vote to dismiss for lack of appellate jurisdiction and how I realized, no, it we very much have to deal with the merits. And so it may be very much something like that. There's just a variety of different things that we hear that will influence us. And like I say, a lot of times, these are just sort of the catapulted us into conferencing where we continue with the discussion from the issues that we discuss in oral argument. And in so we get really far into it. And, you know, we all do try to listen both to the advocates and to one another, because we did really try to keep in mind that it is not about us, it's really about trying to get the decision. Correct.

Tim Kowal: 54:23

Jeff, unless you have other questions, I was just going to maybe segue into talking about maybe how, how the 10th circuit has been navigating the pandemic and a lot of courts have been implementing new procedures, remote oral argument, as it's been probably the most, the most apparent to to the public and to practitioners. Judge Bacharach has the 10th circuit made any any adjustments and changes that that you would anticipate may become permanent even after things have returned to quote unquote normal?

Judge Bacharach: 54:52

One of the things that we had never done before to buy knowledge until the pandemic was doing arguments by zero You know, we had done, we had an elderly judge, who happened to be the judge that I worked for many, many years ago, when he became, you know, physic would have came physically difficult for him to travel. And you know, in later years, he was participating. The video here in Oklahoma City, it's famous judge Holloway. But the we were speaking for myself, I was totally going accustomed to zoom, or, you know, all of these platforms. And so, of course, all of year, we've been doing our oral arguments by zoom. And I would be very surprised when this pandemic is a thing of the past. If we don't resort sometimes, to, you know, sometimes, we may have thought, let's say you and tip, Jeff have a case where everybody wanted to have it, you know, submitted on the briefs. But we have some questions, we really think it would be meaningful, we realized that maybe there's not enough money involved for the parties. But for whatever reason the parties wanted us to forego World War II meant that we have some questions and to make a meaningful decision, we really have some questions that we just need to ask. And, you know, I just think in those kinds of situations, were probably bypassing a really good alternative that none of us on our court had fully appreciated before the pandemic, of maybe we can just get you on, you know, an opposing counsel, obviously, on a zoom call. And we get asked a few questions. Maybe we just have a seven or eight minute precise oral argument where we can ask our questions, without putting people at the expense of flying and staying in a hotel. And I just hope that that is something not necessarily that replaces in person argument that that we use from time to time, hopefully, in a way that is beneficial to the parties and the lawyers.

Jeff Lewis: 56:58

Yeah, I, you know, I really hope at the trial and appellate levels that these remote proceedings are allowed, I think there's a real access to justice issue, where people who would skip certain proceedings or skip oral argument, or not even be able to hire a lawyer to show up to a remote court has access to courts, they would not have access to and I really hope some of these technical innovations can get can survive the pandemic and go for at least as an option.

Judge Bacharach: 57:23

How do I can add to that I think you raised such a good point about access to justice. When I was a magistrate judge, a lot of times we would have hearings. And it was especially in a civil case, it was very problematic to have the indigent, prisoner plaintive brought to court, there was no mechanism to pay for it. Who was going to pay for that was it was not a criminal case. But the judge baby who offered he was they would have questions, and I wanted to have argument. And so a lot of times, what we would do is have the inmate participate by telephone. You know, one of the things that maybe we can do more of is in prisoner litigation is to schedule video arguments where we can actually see the inmates and more importantly, the inmates can see us and opposing counsel and see that the process is fair, they are being treated equally. And I have to admit, you know, there is an appearance of imbalance if that. You say the attorney general's office is physically located. They are in the courtroom, the judges in the courtroom, and nobody can see the inmate participating by telephone, that those are unfortunate things that I think you have a wonderful point, Jeff about an access to justice and settlement conferences with inmate litigation. That baby we can, you know, be a little bit more creative than we have be as a court as courts in the future and have mediations and settlement conferences with indigent litigants, sometimes not prisoners, but other indigent litigants that just can't afford it, that they don't have to travel. And, and I think just we have a lot of opportunities, maybe to, to take advantages of at least one of the few nice lessons that we've learned from the pandemic.

Jeff Lewis: 59:29

Yeah, yeah, agree wholeheartedly. Okay, well, listen, we've covered a lot of materials about you and your book, legal writing a judge's perspective, also known as LWAJP. My takeaways have been judges may not necessarily be thrilled to get a brief with my name on the cover and that you are on Team Jeff when it comes to the use of a cleaned up and you're against Team Tim, and something cleaned up. And I think we all can agree the latest Star Wars movie was mediocre,

Tim Kowal: 59:56

but we shouldn't say so and judicial opinions. Or judicial, legal writing

Jeff Lewis: 1:00:03

any, any final parting thoughts about your book that you want to share with our audience?

Judge Bacharach: 1:00:08

Well, though I just really didn't see you. In all seriousness, I want to tell you and Tim, how much I appreciated the opportunity to be on your podcast. It was really delight. chatting with you both and Tim, I'll be paying you $1 a time each. Each time. You mentioned the name of that book. Jeff, use the acronyms. I'm sorry, you're not

Tim Kowal: 1:00:28

Not even a nickel.

Jeff Lewis: 1:00:32

Alright, and for our listeners, we will be putting a code in the in the show notes. The code is LGLFBRA when pur hasing the book through the Ame ican bar.org website or by pho e at 1-800-285-2211. And che k out our show notes for mor information. Well, that wra s up this episode.

Tim Kowal: 1:00:52

If you have suggestions for future episodes, please email us at Cal podcast@gmail.com. That's c a l podcast@gmail.com. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis: 1:01:06

See you next time.

Announcer: 1:01:08

You have just listened to the California appellate podcast a discussion f timely trial tips and the atest cases and news coming rom the California Court of ppeal and the California upreme Court. For more nformation about the cases iscussed in today's episode our osts and other episodes, visit he California appellate law odcast website at ca l odcast.com. That's the c a l odcast.com. Thanks to Jonathan aro for Intro music. Thank you or listening and please join us gain