Taylor C. Young 2013-01-16 04:11:50
New Year’s Resolution: Clean Briefs Nearly 25 years ago, Mr. Christopher Lutz, the noted Washington D.C. attorney and author, observed that “[l] awyers write badly.”1 “Probably no group has been more relentlessly hounded by calls for better writing[,]” Lutz noted.2 Not much has changed in the intervening years, unfortunately. Lawyers still write badly. And the pleas continue. Lutz’s comments were hardly a revelation, of course. As a law clerk at the Arizona Supreme Court, I witnessed firsthand how damaging a poorly composed appellate brief can be both to the lawyer’s reputation and to the client’s cause. In the appellate courts, the bar is set very high. With the New Year upon us, here is a list of three resolutions to help lawyers produce more effective appellate briefs. 1. Know Your Audience Appellate judges are decision-machines. They read briefs with a singular purpose—to resolve the issues. Don’t engender frustration by making them spend time and energy figuring out exactly what issues are presented, what result is requested, and why your desired outcome is warranted. Get to the point using as few words as possible and stick to it like glue. By all means avoid gamesmanship and ad hominem attacks on opposing counsel or the trial judge. Doing otherwise might be emotionally satisfying for you or your client, but it will alienate the appellate court and eviscerate your credibility. Remember that you are writing the brief for a very specific group of readers: appellate judges. What they expect to read is often very different than what your client wants to see. If you do your readers the favor of presenting your case artfully, but succinctly and honestly, your client’s cause will be more favorably received by the court. 2. Write Briefer Briefs The mandated word count and page limits set the outer boundary for the acceptable length of your brief. But you needn’t reach that limit to be effective. Ironically, using every word allotted often sends a signal of weakness rather than strength. And, as Ninth Circuit Chief Judge Alex Kozinski put it, going beyond those limits is a sure sign “that you have a rotten case.”3 Judge Kozinski, in his classic lecture on how to lose an appeal, counseled that the first step is to file a “fat brief.” He suggested in jest that, “if the rules give you 50 pages, ask for 75, 90, 125 — the more the better. Even if you don’t get the extra pages, you will let the judges know you don’t have an argument capable of being presented in a simple, direct, persuasive fashion.” It is the very rare case where it makes sense to seek leave to go beyond the limits. Before making the request, do the hard work of paring down the facts, issues and arguments to the absolutely essential. You will find it was worth the effort, not only because it avoids sending the wrong signal, but because it will help reveal what is truly important in your case while highlighting the quality of your advocacy. 3. Be Scrupulous with the Law and the Record Another admonition not to misrepresent the law or the facts should hardly be necessary: justice, fairness, and credibility—not to mention the ethical rules—require it. Sadly there is a long tradition in our profession of “shading” legal authorities and facts in the name of zealous advocacy. Because many get away with that sort of chicanery at the trial court level, you may be tempted to follow suit when writing your appellate brief. Don’t. Appellate judges, because they render decisions that govern and bind the lower courts, have more time and resources than trial judges. At a minimum, your brief will be read by three appellate judges and one law clerk or staff attorney. (At the Arizona Supreme Court, your brief will be read by five justices, at least five law clerks, and a staff attorney.) The judges and clerks are busy, but the court will read and analyze the cases you cite and will review the trial court record. Nothing will destroy your credibility faster than trying to pull a fast one on the appellate court. Once that is lost, it doesn’t matter how well your brief is written. You will have lost. Good writing at the appellate level is salient and succinct. And it hews scrupulously to the law and facts. By resolving to be better writers, we will become better lawyers and reach better outcomes for our clients in 2013 and beyond.
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