This is the first part of an interview with Bev Meyers, Founder of Legal Writing Launch, and Monica Ager Jacobsen, Attorney Adviser in the Office of the Legal Adviser, Office of Human Rights and Refugees, in the U.S. Department of State. In this part of the interview, attorney Ager-Jacobsen discusses the following areas:
- Current Position as Attorney Adviser in the Office of the Legal Adviser, Office of Human Rights and Refugees, in the U.S. Department of State
- Judicial Law Clerkship
In the second part of the interview, attorney Ager Jacobsen addresses:
- Law Clerk Internship at the California Office of the Attorney General
- Legal Writing Tips for Pre-Law Students, Law Students for Internships, and New Lawyers (Who Have Just Passed the Bar)
- Importance of Grammar and IRAC in Legal Writing
- Her Goals in Becoming a Lawyer
BEV: Hello, welcome to Legal Writing launch. I’m Bev Meyers, I’m the founder. And today I have the pleasure of speaking to a former intern of mine whom I’m very proud of, Monica Ager Jacobsen. Monica comes to us from the U.S. State Department in the Office of Legal Adviser. Let’s talk first about your position and then we’re going to talk about your prior positions and your internship with me and specifically we’re going to talk about legal writing. Tell us now what you do, Monica.
MONICA: Thanks for having me, Bev. I’m so happy to be speaking with you. I’m currently an attorney adviser at the Office of the Legal Adviser at the Department of State. We call it endearingly “L,” in the alphabet soup that is the state department. My current office is in the Human Rights and Refugees office, where I focus on atrocities, human rights related sanctions, disability rights and children’s rights.
Current Position as Attorney Adviser in the Office of the Legal Adviser, Office of Human Rights and Refugees, in the U.S. Department of State
BEV: What exactly is your position; what’s your title?
MONICA: My title is Attorney Adviser and I should tell you I’m speaking to you in my personal capacity, so nothing I say should be attributed to the U.S. government. I’m an Attorney Adviser.
BEV: My understanding is that you were considered a finalist for the Sammies’ award and can you tell us what that is?
MONICA: The Sammies are the Samuel J. Heyman award which is an award that’s given to a federal government employee who’s a career employee, not a political employee, for the work that they’ve done, either over their career or over the past few years. I am a finalist and we’ll find out in the fall if I win or not. But I’m very honored to even be a finalist from the Emerging Leaders category for folks who are under 35.
BEV: What in particular is this award attributed to, being in this finalist position?
MONICA: In my current role at the Office of the Legal Adviser, one the things that fortuitously happened, was that right as I started this position in the Human Rights and Refugees’ Office, a law called the Global Magnitsky Human Rights Accountability Act was passed by Congress at the end of 2016. And that law provides, among other things, a basis for sanctioning corrupt actors and human rights abusers. During my time in the Office, I helped develop that program in terms of helping draft and create an executive order that implements it and also reviewing all the sanctions packages for the individuals and entities that have been designated under this program.
BEV: Tell us what one of the significant cases you worked on was, in which sanctions were issued?
MONICA: One that had a lot of meaning for me and I think was very impactful for the U.S. government was the designation of several generals in the Burmese army. I had done a lot of work in other aspects of my job on the atrocities that were taking place there against Rohingya. The Secretary of the State has publicly stated that those atrocities constitute ethnic cleansing, really just horrific actions. The sanctions against some of the highest levels of the Burmese army generals was one way the U.S. government created tangible consequences for those actions. Seeing all of those really bad acts, working on those in other contexts and finding a tool to help promote accountability was really very valuable.
BEV: What is Rohingya?
MONICA: Rohingya is a Muslim minority ethnic group that’s in the Rakhine State of Burma. They have really been abused and oppressed for many . . . decades in Burma. And this last series of atrocities started in 2017 really exacerbated the issue and now it’s the largest refugee camp in the world, in Bangladesh, where near to a million Rohingya are currently stuck.
BEV: Along that line you mentioned that you were very involved in the sanctions package. Tell us about your experience using [persuasive] legal writing there.
MONICA: The sanctions packages . . . [is based upon] the legal threshold for showing that something is a serious human rights abuse or that the person is indeed responsible for those actions. . .
BEV: My understanding is that you instituted a layer in terms of actually granting the sanctions packages so that they go forward. So what layer was that and how did you use legal writing in that regard?
MONICA: . . . Any package that is going to move forward comes through the lawyers first so that we can look at all of that material and help clients make the best argument for that sanctions package being legally sufficient. It often can be something as informal as a conversation, an email, but just looking at that material. . .
BEV: . . . the [legal writing format or] standard is critical?
MONICA: The standard is critical. When you’re looking at a sanctions package, the standard is going to be whether there’s reason to believe that whatever the standard of the sanction package [is] in the Global Magnitsky context. There are several prongs. But whether there’s reason to believe for it to have happened or for the person to be responsible. Under the executive order, for example, under the individual responsibility prong, a person would need to be responsible for or complicit in or directly or indirectly engaged in serious human rights abuse; there are lots of facets to explore there. One is the definition of serious human rights abuse which isn’t defined under law and so an understanding or argument of what that might entail and drawing from international laws as well domestic law and that understanding, what it means for somebody say, to be responsible for those actions; are we talking about direct responsibility, personal responsibility, ‘I was there and I pulled the trigger,’ or are we talking about something more akin to command responsibility.
BEV: That basic level [determines] . . . whether or not you’re going to issue sanctions.
MONICA: Absolutely, that’s whether or not we have a legally defensible package. And sanctions packages can be challenged in court. The underlying facts are not necessarily going to come to light; they’re often reviewed in camera. There is a litigation risk, particularly because it’s not just a matter of naming and shaming individuals who are sanctioned, but also cutting them off from U.S. financial markets. . .
BEV: Let’s talk about one other significant case against an individual in 2017: a physician out of Pakistan. Can you tell us what happened there?
MONICA: There was a man who was trafficking in organs; selling organs from individuals that he was holding. It was a pretty egregious case; I think really quite awful. There hadn’t been, what I would say, a lot of accountability for his actions and so this was a pretty remarkable step for the U.S. government to say, ‘You’re not a government actor, however you are somebody who is doing something that we strongly disagree with and accordingly we have this tool in our toolbox, the Global Magnitsky Sanctions Program, that we’re going to use to try to promote accountability for you and these actions and bring attention to some of these bad deeds.’
BEV: And what role did . . . [persuasive] legal writing have in that? Was there a way that you had [to write persuasively] so that this would come under the Magnitsky act?
MONICA: Yes. The act itself talks about gross violations of human rights, which we generally understand as actions taken by government officials in an official capacity. This sanction package came under the executive order which expanded the criteria in which the designation occurred to serious human rights abuses, which we also understand to be non-state actor actions. From the first group of sanctions that we did, and this was one of the first cases of a non-state actor being targeted for serious human rights abuse, under this program. In terms of trying to find the right language and the right case to focus on non-state actors and their abuses, not necessarily in a country specific setting but overall with the global crisis that we’re facing with serious human rights abuse, in terms of trying to figure out how to craft that argument and ensure that it checked all the . . . boxes, I think that’s really where it came into play.
Judicial Law Clerkship
BEV: . . . Let’s move on to the job before this which was the clerkship with a federal judge. Where was that and approximately when?
MONICA: I clerked for Judge Helene White on the Sixth Circuit Court of Appeals in Detroit, Michigan and that was in 2012 to 2013.
BEV: Tell us generally what you did there. [What was your judicial law clerk job description?]
MONICA: The way that the office is set up, the clerks are assigned any cases that come before the judge, criminal or civil. We write both draft opinions for her and then also draft bench memos: memos that are meant to give her background on the case before the case is argued. So it’s both identifying the relevant facts for her and then identifying the legal precedence and the legal arguments. And then to the extent that she’s assigned drafting the decisions themselves, keying up a draft of that decision for her review.
BEV: [In your judicial law clerk position], [w]hat was important in your [legal writing basics there or] draft opinion writing?
MONICA: My judge was really a stickler for sharp, concise sentences. So, if there were extra words there, she didn’t want to see them. She wanted to understand what the core of the issue was. She wanted to understand what the critical facts were and she didn’t want other things . . . muddling that. Drilling in on what the precedent was always the first place to start because judges, especially in a Court of Appeals, really want to know if they’re, facts aside, going to make waves with a legal decision, as opposed to all the fanfare that can come from facts that can be crazy or different.
But if it’s very clear cut where the law is or should come out, they want to know that up front. That was a lot of the work and then to some degree, it was learning her style of writing and her style of logic and reasoning because it wasn’t just writing for myself. Even though draft opinions can move forward with very few edits and sometimes very many edits. I can recall in one case, she had me write both sides; if I were to write an opinion one way and if it were to come out the opposite way, what those two would look like.
BEV: That’s really important in terms of understanding counter-analysis [in one’s legal writing skills].
MONICA: I think she still struggled when I wrote both of those opinions because it really was a close case, and in a close case sometimes writing it out let’s you see where the holes in the argument are. At least in this case, it also identified that either option would probably both be legally reasonable and justified under the facts.
BEV: That makes complete sense. I recall in working as an attorney in the Attorney General’s office that there were a couple times where I was writing an opposition to a motion and as I wrote I realized I hit a stumbling block and that meant that we couldn’t prevail and I would suggest settlement because of that. And it was really difficult to get past that. So at some point the law becomes very clear, but generally advocates argue one position
and the opposite argues the other side. In terms of bench memos, what were you trying to do in those memos to use legal writing effectively [in your judicial law clerk duties]?
MONICA: Where there’s no set ending of how it needs to come out. And you’re just anticipating what the arguments are going to be or what the key points are going to be. You’re really trying to look through the briefs that the attorneys have provided, but also dig into all the underlying documents, anything that happened at the district court trial, and identify the key pieces of what could make a difference and make sure that those are front and center. Any good brief is going to be from an advocate’s position. It can be tempting to rely more heavily on a brief that is well-written. We had even at the Court of Appeals, pro se cases where people were representing themselves.
We had attorneys that were clearly not the best legal writers or not being the best advocates for their clients and their role. From a judge’s perspective, you can’t let that lack of advocacy decide the case; it has to be the underlying facts and whatever the controlling law is. Even though you have kind of no investment in the outcome, making sure that there is zealous representation on both sides such that you can see what the best arguments for both sides of the case are, is I think the most important aspect of a bench memo.
BEV: In terms of you saying ‘there are sometimes attorney’s that submitted briefs that aren’t particularly great’, and when they did, what kinds of things were the flaws in the brief [or how they could improve their legal writing]?
MONICA: I think burying the lead is probably the most common problem because if something can be said in five pages that is instead said in twenty, then somebody’s job is going to be to dig through and find those relevant five pages that are not necessarily in order in the twenty. Sometimes people just don’t have the time and effort to do that and so if the best arguments are identified and put up front, and it may be that there are secondary arguments that are likewise compelling but perhaps not determinative, those are potentially worth including, but they should not be the lead.
And there should be clarity at the outset, in terms of the brief itself, and then in any paragraphs as they go through about what those arguments are so that a reader can follow along and take those core arguments with them. Especially in writing something like a bench memo; the judge would always want to know what both sides are arguing. To some degree, you fill in the gaps where those arguments are not clear, but at some point, if an argument isn’t made, a judge isn’t going to consider it. Making sure that those arguments are upfront and very clear allows somebody to weigh them appropriately.
BEV: It’s interesting because it sounds like what you’re seeing in those situations with those attorneys is in large part a lack of [legal writing] editing. Where those twenty pages should have been five pages and should have really focused on the core issues and the whole argument should have evolved from that.
MONICA: That’s right. I think it’s a lack of editing and I think there’s actually, for even the process of bench memos or drafting the opinions, often they would start quite long and then I would realize going through or in conversations with the judge, that whole paragraphs aren’t necessary. That they can either be summarized down to a sentence and boiled down something that’s more concise or they weren’t necessary to connect the dots of whatever argument we’re making. It doesn’t mean that those twenty pages weren’t a valuable piece at some point in the draft. It just probably shouldn’t have been what was submitted to a judge. I do think people think, ‘If I submit this thing that’s twenty pages, they’ll think I have a million arguments instead of if I submit five, they’ll recognize I only have three.’ I think the risk is with the latter, the judge might not be able to identify the three. They may get muddled in everything else.
BEV: It’s interesting because in my experience, the shorter the brief I wrote, the more the judge would commend me.
MONICA: It’s a lot of paper to read! If the arguments aren’t the strongest arguments, the case isn’t going to be a winner regardless. But putting the best case forward doesn’t necessarily mean making the most arguments; it’s making the best arguments.
. . .
BEV: Thank you very much, Monica, for being with us today and I look forward to connecting with you soon.
MONICA: Thank you.
