ABA formal opinion addresses peremptory jury challenges and unlawful discrimination
American Bar Association
The American Bar Association Standing Committee on Ethics and Professional Responsibility on Wednesday released a formal opinion that provides guidance to lawyers exercising peremptory challenges in the jury selection process. The opinion states that “a lawyer who knows or reasonably should know that the lawyer’s exercise of peremptory challenges constitutes unlawful discrimination in the jury selection process violates Model Rule 8.4(g).”
Formal Opinion 517 says that it is not “legitimate advocacy” within the meaning of Model Rule 8.4(g) for a lawyer to carry out a trial strategy that would result in unlawful juror discrimination and may not follow a client’s directive or accept a jury consultant’s advice or AI software’s guidance to exercise peremptory challenges if the lawyer knows or reasonably should know that the conduct will constitute unlawful juror discrimination. At the same time, the opinion explains that a lawyer does not violate Rule 8.4(g) by exercising peremptory challenges on a discriminatory basis where not forbidden by other law.
The Supreme Court of the United States, in a series of decisions beginning with Batson v. Kentucky in 1986, has held that trial lawyers in both criminal and civil cases are forbidden from exercising peremptory challenges based on certain specified criteria such as the prospective juror’s race or gender, because doing so violates prospective jurors’ equal protection rights under the Fourteenth Amendment. But, under state and federal law, not all discrimination is forbidden in this context. For example, courts have permitted lawyers to exercise peremptory challenges based on a prospective juror’s age, marital status, disability or socioeconomic status.
Formal Opinion 517 addresses two principal questions regarding discriminatory challenges. First, when does a lawyer’s unlawful exercise of peremptory challenges on a discriminatory basis violate Rule 8.4(g)?
Second, given the statement that lawyers may engage in legitimate advocacy consistent with the Model Rules, does a lawyer violate Rule 8.4(g) by exercising peremptory challenges on discriminatory bases where not forbidden by other law?
The opinion says that striking prospective jurors on discriminatory bases in violation of substantive law governing jury selection is not legitimate advocacy because conduct that has been declared illegal by the courts or a legislature cannot constitute “legitimate advocacy.”
The opinion also looks at the question of when peremptory challenges, on their face, are or are reasonably likely to be discriminatory, but the client or jury consultant offers other, nondiscriminatory reasons for exercising them. Explaining that there may be a duty of inquiry about these reasons, the opinion explains that if, upon inquiry, the lawyer ascertains that the client or consultant has sincere reasons that are legitimate, not impermissibly discriminatory, then the lawyer may exercise the peremptory challenges.
Looking to the legislative history of Rule 8.4(g), the opinion provides that to violate Rule 8.4(g) the lawyer’s peremptory challenges must be forbidden by other law like Batson or other law on jury selection.
The standing committee periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Other recent ABA ethics opinions are available at www.americanbar.org/groups/profess ional_responsibility/publications/ethics_opinions.
(https://www.americanbar.org/news/abanews/aba-news-archives/ 2025/07/aba-issues-formal-opinion-517/)
The American Bar Association Standing Committee on Ethics and Professional Responsibility on Wednesday released a formal opinion that provides guidance to lawyers exercising peremptory challenges in the jury selection process. The opinion states that “a lawyer who knows or reasonably should know that the lawyer’s exercise of peremptory challenges constitutes unlawful discrimination in the jury selection process violates Model Rule 8.4(g).”
Formal Opinion 517 says that it is not “legitimate advocacy” within the meaning of Model Rule 8.4(g) for a lawyer to carry out a trial strategy that would result in unlawful juror discrimination and may not follow a client’s directive or accept a jury consultant’s advice or AI software’s guidance to exercise peremptory challenges if the lawyer knows or reasonably should know that the conduct will constitute unlawful juror discrimination. At the same time, the opinion explains that a lawyer does not violate Rule 8.4(g) by exercising peremptory challenges on a discriminatory basis where not forbidden by other law.
The Supreme Court of the United States, in a series of decisions beginning with Batson v. Kentucky in 1986, has held that trial lawyers in both criminal and civil cases are forbidden from exercising peremptory challenges based on certain specified criteria such as the prospective juror’s race or gender, because doing so violates prospective jurors’ equal protection rights under the Fourteenth Amendment. But, under state and federal law, not all discrimination is forbidden in this context. For example, courts have permitted lawyers to exercise peremptory challenges based on a prospective juror’s age, marital status, disability or socioeconomic status.
Formal Opinion 517 addresses two principal questions regarding discriminatory challenges. First, when does a lawyer’s unlawful exercise of peremptory challenges on a discriminatory basis violate Rule 8.4(g)?
Second, given the statement that lawyers may engage in legitimate advocacy consistent with the Model Rules, does a lawyer violate Rule 8.4(g) by exercising peremptory challenges on discriminatory bases where not forbidden by other law?
The opinion says that striking prospective jurors on discriminatory bases in violation of substantive law governing jury selection is not legitimate advocacy because conduct that has been declared illegal by the courts or a legislature cannot constitute “legitimate advocacy.”
The opinion also looks at the question of when peremptory challenges, on their face, are or are reasonably likely to be discriminatory, but the client or jury consultant offers other, nondiscriminatory reasons for exercising them. Explaining that there may be a duty of inquiry about these reasons, the opinion explains that if, upon inquiry, the lawyer ascertains that the client or consultant has sincere reasons that are legitimate, not impermissibly discriminatory, then the lawyer may exercise the peremptory challenges.
Looking to the legislative history of Rule 8.4(g), the opinion provides that to violate Rule 8.4(g) the lawyer’s peremptory challenges must be forbidden by other law like Batson or other law on jury selection.
The standing committee periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Other recent ABA ethics opinions are available at www.americanbar.org/groups/profess ional_responsibility/publications/ethics_opinions.
(https://www.americanbar.org/news/abanews/aba-news-archives/ 2025/07/aba-issues-formal-opinion-517/)
Effective legal writing: How to please the court
American Bar Association
To communicate effectively, lawyers should strongly consider their audience, especially when it is the court, according to panelists at the American Bar Association webinar, “Effective Legal Writing Strategies: When the Court is Your Audience.”
Lawyers should aim to reduce the amount of time a judge needs to understand their case, the panelists said, agreeing that lawyers’ success in advocating for their clients will largely depend on their writing ability.
Georgia Court of Appeals Judge Christopher McFadden said sometimes he’s halfway through a brief and “still not quite sure what the legal issue I have to decide is,” adding that lawyers should be aware of the “cognitive load” they’re putting on judges.
McFadden said shorter sentences and parallel structure help judges understand and identify the issues.
Eleventh Circuit Court of Appeals Judge Nancy Abudu agreed that short, concise sentences for topic sentences and brief headings are the “first point of clarity.” Using the table of contents as an outline for where you plan to go as the writer and want the reader to follow along is key, she said.
“It’s a road map for the case,” Abudu said. “It begins with your strong understanding of what the case is.”
Abudu said tone also should be considered for clarity. “At the appellate level you’ve got three judges, most likely, [whose attention] you’re trying to get, and everyone’s learning style is different. So, I recognize it can be difficult to pick a style that can accommodate the various audiences,” she said. “But, again, it comes back to you really being the owner of your case and setting the stage through the tone, through the language of what your case is about and what it is you want.”
According to Margaret Bullard, a central staff attorney for the Court of Appeals of Georgia, the table of contents and headings should be persuasive, “but don’t make them too concise that the court doesn’t know what you’re asking for. For example, if a heading says, ‘The Car Chase,’ I don’t know what that means by itself. Give more context,” she said.
Bullard said she learned in law school that “a judge should be able to read your headings and agree with them, and you win, explaining that they should be framed in such a way that readers would have to agree with what you wrote.
Bullard cautioned against using excessive detail that “bogs down the reader at the beginning,” sloppy, slang or colloquial language, or legalese.
“You don’t have to tell somebody you’re a lawyer by using legalese. We’ll know that from the bar number on the brief,” Bullard said.
Abudu said there still is debate about the use of colloquial terms, contractions and conjunctions. She suggested that judges and lawyers adopt a writing style that has longevity.
Acronyms, consistency, paragraph structure, persuasiveness and other writing strategies were also discussed.
The program, sponsored by the ABA Judicial Division, is available for free on-demand. To view the program, visit www.americanbar.org/groups/judicial and click on “Resources.”
(https://www.americanbar.org/news/abanews/aba-news-archives/ 2025/07/effective-legal-writing-court/)
To communicate effectively, lawyers should strongly consider their audience, especially when it is the court, according to panelists at the American Bar Association webinar, “Effective Legal Writing Strategies: When the Court is Your Audience.”
Lawyers should aim to reduce the amount of time a judge needs to understand their case, the panelists said, agreeing that lawyers’ success in advocating for their clients will largely depend on their writing ability.
Georgia Court of Appeals Judge Christopher McFadden said sometimes he’s halfway through a brief and “still not quite sure what the legal issue I have to decide is,” adding that lawyers should be aware of the “cognitive load” they’re putting on judges.
McFadden said shorter sentences and parallel structure help judges understand and identify the issues.
Eleventh Circuit Court of Appeals Judge Nancy Abudu agreed that short, concise sentences for topic sentences and brief headings are the “first point of clarity.” Using the table of contents as an outline for where you plan to go as the writer and want the reader to follow along is key, she said.
“It’s a road map for the case,” Abudu said. “It begins with your strong understanding of what the case is.”
Abudu said tone also should be considered for clarity. “At the appellate level you’ve got three judges, most likely, [whose attention] you’re trying to get, and everyone’s learning style is different. So, I recognize it can be difficult to pick a style that can accommodate the various audiences,” she said. “But, again, it comes back to you really being the owner of your case and setting the stage through the tone, through the language of what your case is about and what it is you want.”
According to Margaret Bullard, a central staff attorney for the Court of Appeals of Georgia, the table of contents and headings should be persuasive, “but don’t make them too concise that the court doesn’t know what you’re asking for. For example, if a heading says, ‘The Car Chase,’ I don’t know what that means by itself. Give more context,” she said.
Bullard said she learned in law school that “a judge should be able to read your headings and agree with them, and you win, explaining that they should be framed in such a way that readers would have to agree with what you wrote.
Bullard cautioned against using excessive detail that “bogs down the reader at the beginning,” sloppy, slang or colloquial language, or legalese.
“You don’t have to tell somebody you’re a lawyer by using legalese. We’ll know that from the bar number on the brief,” Bullard said.
Abudu said there still is debate about the use of colloquial terms, contractions and conjunctions. She suggested that judges and lawyers adopt a writing style that has longevity.
Acronyms, consistency, paragraph structure, persuasiveness and other writing strategies were also discussed.
The program, sponsored by the ABA Judicial Division, is available for free on-demand. To view the program, visit www.americanbar.org/groups/judicial and click on “Resources.”
(https://www.americanbar.org/news/abanews/aba-news-archives/ 2025/07/effective-legal-writing-court/)
