[Plaintiff] persistently misstates the central issue in the case by insisting, here and in related appeals, that the question presented is whether a defendant charged with trade secret misappropriation “may escape liability” by establishing that it “does not comprehend the specific information comprising the trade secrets.” This is not an issue, let alone the chief issue, in these matters. The posited question may be answered in the negative-as indeed it must-without resolving any aspect of this case. It is a smokescreen, a red herring, a straw man.

No more paper: just electronic journals with links to sources. That’s what’s ahead. All this current, Bluebook-inspired preoccupation with small caps and spacing initials and the like will go the way of the mastodon. One of these days, we’ll have just URLs. They’ll have to be correct, or they won’t work. And they’ll have to last.

If you’re an academic writer, you should check out the article. Here’s the abstract at SSRN, where you can access the complete article after signing up for a free account:

For decades, legal footnotes have been the deserving target of both ample criticism and self-mockery. Apart from their complaints as to footnotes’ mere existence, most critics draw a bead on the ballooning of footnote content. Some journal editors, aspiring to respond to this sound theme, hopefully inform their authors of a preference for “light footnoting.” But where does an author begin to trim, and what editor has the audacity to slash what the author (or her research assistant) has so laboriously compiled below the line? Changing our footnote habits is about benefits and costs. To gain the former, we must ante up. If criticism began the round of bidding, this article modestly raises the stakes, suggesting a rule of reason that might govern the author’s, the editor’s, and the reader’s expectations for footnotes. A gamble, perhaps, but one that might be worth taking.

Clinicians, however, have developed theories of client-centered lawyering which require that the attorney uncover their client’s values, goals and objectives that may go well beyond the discrete litigation at hand. Client-centeredness encourages the attorney to incorporate this information into his/her advocacy on behalf of their client. This article advocates incorporating select principles from client-centered lawyering into legal writing. The primary purpose for this application is persuasion and advocacy, not necessarily empowering the disenfranchised client.

This is a very interesting concept, and certainly one that cuts against conventional legal writing wisdom. It also requires lawyers to step back from the “I’m the lawyer, I know what I’m doing, leave it to me” approach to client relations. Think how much happier your clients will be knowing not only that their values are being incorporated into the project, but that incorporating those values actually makes for better advocacy.

As for an answer to the question itself, this looks like a pretty darn good place to start.

Such is the case with White v. Mayflower Transit, case no. 07-55528 (9th Cir. Sept. 12, 2008), in which the court writes that the pro se appellant contended that the district court lacked removal jurisdiction over the case.  But they don’t explain the substance of the appellant’s argument.  They merely explain how the facts of the case demonstrate the applicability of a federal statute that grants exclusive jurisdiction to the federal courts.  Pretty cut-and-dried.

Why not say what the appellant’s argument was?  Given the fact he was pro se and the short, plain way in which the court establishes the existence of removal jurisdiction, I get the sense that we were robbed of a very interesting read.  Shouldn’t the court at least mention what the argument was, even if just to dismiss it as ridiculous and thereby reduce the chance that it is raised by a subsequent litigant?

I got curious enough that I looked up the case on Westlaw.  The appellant’s brief wasn’t available, but the appellee’s brief was, and according to appellee, the appellant’s arguments were “difficult to decipher.”  Thus the appellee, like the court, skipped right over the substance of appellant’s argument and presented an affirmative case for jurisdiction without trying to refute whatever it was appellant was trying to say.

The Honorable Samuel A. Alito, Jr., associate justice of the United States, spoke on “Lawyering and the Craft of Judicial Opinion Writing” at the School of Law on Wednesday, July 30, to a crowd of more than 200 students, alumni, law professors, journalists, judges, and special guests.

Justice Alito was joined by The Honorable Michael W. McConnell, United States Appellate Judge for the Tenth Circuit; The Honorable Walter E. Dellinger III, former United States Solicitor General; Pepperdine School of Law dean and former Solicitor General Ken Starr; and Professor Douglas W. Kmiec, former United States Assistant Attorney General (OLC).

Hat tip: Crime & Federalism.

Really? I’ve never doubted the value of a well-written reply brief, nor have I heard others question their value. Though reply briefs are optional, I can’t imagine I’d ever decide against filing one.

If you’d like to read what some appellate justices have to say about them, check out Are Reply Briefs Really Necessary? The Recorder e-mailed all 103 appellate justices in California for their views on reply briefs and got responses from 25 of them. Reporter Mike McKee’s write-up of their responses describes some pitfalls for appellants’ counsel to avoid and how the justices approach brief reading, among other things.

Hat tip: The Appellate Practitioner.

If you’re writing according to a typical “IRAC” formulation, Professor Mark E. Wojcik of John Marshall Law School and the Legal Writing Prof Blog says you’re leaving an important letter out of that acronym.  Go to SSRN to download his article from the November 2006 Student Lawyer (yes, 2006, but he just posted the link yesterday) on why adding an “explanation” step to your analysis is helpful.

In this highly unusual study, the authors looked for correlations between the use of “intensifiers” — words like “clearly,” “obviously,” “blatant” and “very” — in appellate briefs and the outcome on appeal.  From the abstract of the paper:

This article describes two empirical studies of appellate briefs, which show that the frequent use of intensifiers in appellate briefs (particularly by an appellant) is usually associated with a statistically significant increase in adverse outcomes for an offending party. But – and this was an unexpected result – if an appellate opinion uses a high rate of intensifiers, an appellant’s brief written for that appeal that also uses a high rate of intensifiers is associated with a statistically significant increase in favorable outcomes. Additionally, when a dissenting opinion is written, judges use significantly more intensifiers in both the majority and dissenting opinions. In other words, as things become less clear, judges tend to use clearly, and obviously more often.

The abstract goes on to note there may be explanations other than the ones that might immediately leap to mind.  Still, this is no reason to start peppering your briefs with intensifiers you normally avoid.  But it is interesting!

Hat tip: Texas Appellate Law Blog.

Of course, your appendix on appeal does have a function (though I can understand how the temptation to write that line was irresistible to Professor Childress).  But the larger point remains: proof your appendix as carefully as you do your brief.

In People v. Logsdon, case no. G038366 (4th Dist. May 28, 2008, ordered published June 24, 2008), the defendant contended that the officer following him on an otherwise nearly deserted street in the middle of the night lacked cause to stop his vehicle after defendant crossed several lanes of traffic without signaling. Defendant contended that in the absence of other traffic, his unsignaled lane change was a safe move.

He forgot about the patrol car following him! The court holds that the officer who made the stop constituted traffic that needed warning of the lane change.

There’s an interesting angle to this case from an appellate perspective and from a writing perspective.

Writing first. When the defendant claimed that the patrol car was too far away to be affected by the unsignaled lane change — as evidenced by the fact that the officer neither braked nor swerved — the court discounted thre argument with an unintentionally (?) funny choice of words to explain that the defendant’s lane change did not actually have to alter the patrol car’s course to be unsafe (emphasis added): “Actual impact is not required by the statute; potential effect triggers the signal requirement.” Glad to know a collision isn’t required.

Next, the appellate angle. The trial court found that defendant’s lane change affected a car traveling about 100 feet behind him (apparently referring to the patrol car) and decided not to disturb the ruling without resolving the issue of whether it was a factual finding or a discretionary one (emphasis in original):

The trial court found that a vehicle within 100 feet of Logdon’s car, traveling in the same lane and at the same speed, was affected by the lane change. Moreover, the Legislature has declared its opinion that vehicle signals are needed within 100 feet of any turn. (See Veh. Code, § 22108.) Whether this finding is a discretionary finding or a finding of fact, we must accept this one. Factual findings are to be accepted if substantial evidence can be found in the record to support them [citation], and discretionary rulings must be upheld unless an abuse of that discretion is shown. (See People v. Bishop (1993) 14 Cal.App.4th 203, 212-213 [abuse-of-discretion standard appropriate when lower court “is in the best position to determine the genuineness and effectiveness of the showing . . . .”].) Under either standard, we must accept this finding.

Before you do battle over the nature of a finding and thus the applicable standard of review, make sure the distinction makes a difference.

The brief filed by petitioners’ counsel, Yan Wang, is a “cut and paste” affair that appears to present the facts of another case — notably for a person of a different gender than Rusli, who had different experiences, in different years, and appeared before a different immigration judge. This substantive failure to comply with Federal Rule of Appellate Procedure 28 alone justifies dismissal. Further, the brief, by definition, offers no developed argument directed to petitioners’ claims, with the necessary consequence that the claims are waived.

Hat tip: Appellate Law & Practice.

Hat tip: Legal Writing Prof Blog.

Legal writing enthusiasts differ on the proper use of footnotes, and I’ve posted before about the debate. One appellate jurist addressing my law school class advised that if a point is important enough to go in the brief, then it’s important enough to go in the body text of the brief rather than in a footnote. Ray Ward at the (new) legal writer noted that some people even presume that footnotes in appellate briefs are not likely to be read.  

Yet, I’ll bet every lawyer at least remembers learning in Constitutional law class about the importance of footnote 4 in the Carolene Products case, even if not every lawyer remembers why it was significant.

What prompts my thinking about footnotes this morning?  Believe it or not, it’s this morning’s California Supreme Court decision in In re Marriage Cases, case no. S147999 (May 15, 2008)., in which the court strikes down California’s same-sex marriage ban.  The opinions combine for 161 pages, and would have been even longer if the court had followed the advice above — but then again, the court undoubtedly was aware that these opinions — including every word in every footnote — would be more heavily scrutinzed than any other opinion in recent history.

And the court used that awareness to full advantage.  The majority opinion of 121 pages has 73 footnotes, many of them a half page long (single-spaced), and one (footnote 24) more than a page and a half long.  I estimate roughly 21 pages of that 121-page majority opinion is taken up by single-spaced footnotes.  Placed in the body of the text, they would have added 42 pages to the opinion and they appear to account for roughly one quarter of the opinion’s content.

There may be no single footnote likely to overtake footnote 4 in Carolene Products (then again, there might), but it will be interesting to see how much of the early commentary on the decision arises from points made in the footnotes, and it will also be interesting to see how widely cited the footnotes become in future cases.

That’s just one piece of advice offered by Seventh Circuit Judge Richard Posner in his turn at the ABA Section of Litigation’s “Tips from the Trenches” column, titled “Convincing a Federal Court of Appeals.” Attorneys who fail to take into account that the appellate judges are not specialists and have a limited time to deal with each case are making a mistake; a judge “depends on the lawyers to provide enough background in the field out of which the case emerges to orient” the judge.

Tip no. 2: don’t think you can win by “rubbing the judges’ noses in the precedents.”

This terrific column provides lots of practical advice, closing with an 8-item list of “do’s and don’ts” of oral argument.

Hat tip: How Appealing.

[O]ne of my favorite aspects of oral argument is that it forces you to distill your case down to the barest elements. As the appellant, if you can’t persuade the court based on your best two or three points—which should all be covered thoroughly in your brief—you’re probably going to lose.

Hear, hear.

I think the same approach pays off in briefing. Rarely do you read an opinion that refers to a “scattershot” or “shotgun” approach by the appellant where those terms aren’t used (at least implicitly) insultingly or, more importantly, where the appellant actually prevails on any of those issues.

This is often a battleground between lawyers and their clients at both the trial and appellate stages. Clients want to include every last morsel of how they may have been wronged, while attorneys — good ones, at least — recognize that simpler is better, especially if it means letting go of of weak arguments.

Ray Ward posed this question at the top of his post at the (new) legal writer warning about the dangers of the “kitchen sink” approach:

When we try to narrow down the issues and arguments in a brief, throwing out the weak ones and keeping the strong ones, we take a risk: the risk that we may be getting rid of something that would have persuaded the judge. So should we get rid of those weak issues and arguments?

Citing some other writers, Ward offers some compelling reasons for answering “yes.” Not only does he offer the negative consequences of presenting weak arguments, he also offers reasons (besides the remote possibility of success) why we come up with them in the first place and then why we are reluctant to get rid of them.

I don’t think it is possible to set a hard and fast rule on the cutoff point, i.e., that point at which the odds of prevailing on any given argument reach so low a level that it should be dropped. That will obviously vary from case to case. I suppose there are cases where an appellant might raise 7, 8, or even 10 strong issues — but I haven’t run across one.

I generally approach the issue from the opposite end. Rather than start with every conceivable issue and then determine which ones to drop, I start with those same issues, pick the best two or three, then determine which of the remainder to add. In other words, instead of looking at how weak an argument has to be before I drop it, I ask how strong an argument has to be before I include it. That’s a tougher test for those remaining issues, and it helps prevent the pride of authorship in an early draft (one of the obstacles noted in Ward’s post) from getting in the way.

We’re paid to use our judgment. Is there a risk that one of the arguments that was raised during your brainstorming stage but never made it into the brief might have persuaded the judges? Absolutely. But using that possibility — often a very remote one — as an excuse to include every argument is asking for trouble.

By the way, for a personal anecdote on a misadventure resulting from including a weak argument mandated by my supervising partner against my protest early in my career, see this earlier post of mine.

Hat Tip: Legal Writing Prof Blog.

I’m starting to put it in the same category as “clearly” and “obviously.” It does not persuade. It only draws attention to itself as an effort to sound persuasive. Anytime a word draws attention to itself, it’s not good. And the attention it draws is therefore usually negative attention. I won’t use it in my writing.

Thanks to Legal Writing Prof Blog, I learned that the entire Journal of the Association of Legal Writing Directors is on-line—every issue, every article, in both HTML and PDF. If you’ve never read the JALWD, do yourself a favor and pay a visit.

He directs you to Legal Writing Prof Blog for instructions on how to submit to JALWD “[i]f you’re brave enough to actually want to write an article” for them. One should be prepared, I assume, for some extensive constructive criticism!

An article describing Justice Scalia’s and Mr. Garner’s collaboration is here.

Hat tip: CAAFlog.

Ray Ward posted several months ago that starting a sentence with a conjunction is okay in an appellate brief. I wholeheartedly agree. I think it can make a sentence more powerful.

Ward justifies the practice in part because the Unites States Constitution includes sentences starting with conjunctions and concludes, “So if it’s good enough for the U.S. Constitution, it’s good enough for that brief you’re working on.”

But don’t take that logic too far. One of the constitutional excerpts Ward provides is Article II, section 1: “And they shall make a List of all the Persons voted for, and of the Number of Votes for each…. But in chusing the President, the Votes shall be taken by States…. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.” I would never advocate to the appellate court that it should “chuse” my position!

So insight into what that audience is looking for, and how it approaches your document, is valuable. Professor David Sorkin sets out to provide insight for writers of appellate briefs in his article, Appellate Briefs — A Reader’s Perspective. Its very brief abstract:

Appellate briefs should make a court want to rule in the advocate’s favor, and should make it easy for the court to do so. An effective brief is short and simple. It employs a tone of deference and respect for the court, engaging the reader’s attention while explaining the advocate’s position.

Legal Writing Prof Blog has already read the article and provides some details.

H/T De Minimus.

These rules are general grammatical rules. A rule I have heard applied only to more formal writing, including legal writing, is “Do not use contractions.” From force of habit, I usually don’t. (Yes, I know I use contractions in my blog posts, but that is a much more informal medium.) I don’t actually remember this rule being taught in my legal writing class back in 1990, but I learned it somewhere, and it has stuck with me.

But do we really need to avoid contractions completely? Ray Ward doesn’t think so, at least not in appellate briefs. Drawing on Bryan Garner’s change in attitude over time, he says (footnotes omitted):

In the first edition of The Elements of Legal Style, published in 1991, Bryan Garner counseled readers to avoid using contractions in legal writing. Now, he says contractions are okay. He recognizes that judicious use of contractions results in a relaxed, confident style. Relaxed,confident attorneys aren’t afraid of using contractions when arguing orally before an appellate court. If contractions are appropriate in oral argument (and they are), then they’re okay in briefs too.

Plainlanguage.gov also invokes Bryan Garner (emphasis added):

While many legal authorities say that contractions don’t belong in legal writing, Bryan Garner, a leading authority on legal writing, advocates their use as a way to make legal writing, including opinions and rules, less stuffy and more natural. Contractions make your writing more accessible to the reader. Research shows that that they also enhance readability (Danielson and Larosa, 1989).

“Write as you talk” is a common rule of writing readably, and the best tool to do that is to use contractions. People are accustomed to hearing contractions in spoken English, and using them in your writing helps them relate to your document.

Use contractions with discretion. Just as you shouldn’t bullet everything on a page, you shouldn’t make a contraction out of every possible word. Don’t use them wherever possible, but wherever they sound natural.

(Hat tip: Roy Jacobsen at Writing, Clear and Simple, who reprints his article on the subject (not limited to legal writing) in this cleverly titled post: Contractions and How Not to Abuse ‘Em.)

Mister Thorne at Set in Style seems to be okay with contractions in briefs, illustrated with a clever hypothetical Q & A that makes fun of the misuse of “which” for “that,” which I complained about just a few days ago.

Professor Wayne Schiess says one should generally avoid contractions in a legal memo because they may be perceived by the senior attorney reviewing the memo as too informal.

Ken Adams of Adams Drafting is dead set against using contractions in contracts, but not all commenters at his post agree.

Does anyone out there still feel strongly that contractions should not be used, or that they should at least be avoided, in appellate briefs? What about other forms of legal writing?

But then comes this post at Set in Style, in which the author notes that legislatures have traditionally received “a pass” on misuse, but links to an exception explained in this post at The Legal Satyricon.

The Chicago-Kent College of Law has a great statement and explanation of the rule here.

And Grammar Girl has a great podcast, just a few minutes long, that explains the rule in a very easily understood way.

UPDATE (4/3/08): Check the comments for a witty one from George Lenard.  (By the way, see the box labeled “Read more from George Lenard” following his comment?  That is a snippet from his blog, linked automatically by the Blogfollow plug-in I have installed.  You can get this added exposure for your own blog by providing the URL for your blog when you comment.)

NOTE: Somehow this post got marked “private,” so I’m not sure it ever showed up on the blog before.  But it’s possible it was posted for a while befopre it got marked “private,” in case you’re looking for an explanation for any deja vu you’re experiencing.)

Schiess pithily takes on the commonly asserted justifications of brevity and tradition. And he’s soliciting thoughts from those who prefer single-sentence questions presented.

Chief Judge Kozinski accomplished that with his single-sentence opening paragraph in New Hampshire Ins. Co. v. C’est Moi, Inc., case no. 06-55031 (9th Cir. Mar. 20, 2008): “We consider the doctrine that’s on everyone’s lips: uberrimae fidei.”

Made me read the rest of it, anyway.

UPDATE (3/20/08): Professor Martin points out that this is the second published decision from the Ninth on the uberrimae fidei doctrine in just six weeks, so maybe that opening line was not only humorous, but factually correct.

Ninth Circuit Blog’s post concludes that there’s advantage to be had from ambiguity:

Come to think of it, if the federal judiciary is increasingly hostile to the rights of criminal (and particularly, indigent) defendants, maybe plurality decisions are good things. After all, an exploitable ambiguity is far better than a clear defense defeat. If that’s the case, keep up the good work, Supremes and Ninth!

Correction (3/3/08): The post addresses Supreme Court plurality opinions as well as en banc Court of Appeals decisions.

Hat Tip: Mister Thorne of Set in Style.

He gives you pointers for doing so, with before-and-after examples illustrating how to present important information early, leave tedious details for later, and avoid abstraction.  And since the title of the post includes “part 1,” you’ll want to follow his blog for the follow-up posts.

Thanks to Legal Writing Prof Blog.

It’s nice to see clear, compelling writing triumph, regardless of who presents it, especially in light of recent charges that the court tends to favor “superstar” attorneys with an established SCOTUS presence.

Even more interesting to me: the order does not set out the entirety of the language to be deleted. Instead, it references the sentence to be deleted only by the beginning words in that sentence: “Lawyers should learn . . . .” Which gives you a hint that the excised language is a little snarky, and may even prompt the average reader to look up the original opinion. Which you won’t have to do if you go to California Appellate Report.

The catalyst for the discussion was whether a series of SCOTUS precedents dating back to the 1880s was effectively overruled by a 1990 SCOTUS decision.  The competing opinions in John R. Sand & Gravel disagree on the impact of the 1990 decision, with the majority concluding that it did not overrule the earlier cases.

I remember my legal writing professor emphasizing the importance of citing recent precedent.  But sometimes, the only case you have directly on point is quite old.  I’m pretty sure I have cited cases from the 1800s.  John R. Sand & Gravel proves that old — very old — cases can serve as effective precedent.

Jeff Skilling filed his reply brief in his Fifth Circuit appeal of his convictions.  You might remember earlier posts about the extraordinary length of his opening brief here and here, the former of which also has a round-up of commentary on its substance.   

According to White Collar Crime Prof Blog, the 161-page reply is the shortest brief filed in the case yet.  The blog follows up with some commentary on the substance of the brief here, including an observation that the transition from the statement of facts to the first argument is “a masterpiece in the art of skillful brief writing.”

At The Opening Brief, taking his own advice that improvement of one’s writing is a career-long endeavor, Sacramento appellate attorney Tom Caso resolves to work actively on his writing during the year.

At the (new) legal writer, New Orleans appellate attorney Raymond Ward resolves to keep in perspective such legal writing trivialities as whether to put one or two spaces after a period, where to place citations, and whether to fully justify text. Attention to detail is important, he says, but there’s room to disagree on things like this.

I’d like to say that I didn’t come up with any resolutions like this because my writing is already perfect, but alas, these reminders have led me to the same resolutions. We should all jump on board, if you ask me.

If you haven’t already made these resolutions, consider this your notice of default under rule 8.220(a), California Rules of Court, so you have 15 days from today to make your resolutions in a timely fashion.

And if you don’t know which way the judges deciding your appeal lean on the issue, and you can’t resist using footnotes, you’ll want to at least use them “correctly” — if there is such a thing.

In this post at the (new) legal writer, New Orleans appellate attorney Raymond Ward notes an article by The John Marshall Law School’s Prof. William B.T. Mock, Jr. entitled When a Rose Isn’t ‘Arose’ Isn’t Arroz: A Student Guide to Footnoting for Informational Clarity and Scholarly Discourse, which, according to Ward, divides footnotes into three types and describes the appropriate use of each type.

This is Ward’s second alert to a footnote article in as many months. Last September, he described another professor’s take on footnotes somewhat differently, going so far as to say the author found non-citation based footnotes — that is, footnotes containing anything other than citations to authority — to be “useless.”

Like I said: some people love ‘em, and some people hate ‘em. I think those two groups probably break down along these lines: Writers love ‘em, readers hate ‘em.

The articles Ward references are posted at Social Science Research Network. Links to the articles are provided in the respective posts at the (new) legal writer mentioned above.

But seriously, there’s nothing like regular blogging to hone your speed-writing skills!

If you saw my Simply the Best Law Blogs post, you know that Decision of the Day is among those I listed.  Yes, the analysis is good, the posts are extraordinarily timely, and the Ninth Circuit gets its fair share of coverage . . . but I also keep reading it because of writing like this (my emphasis):

This Ninth Circuit criminal appeal is a cautionary tale about why you should do background checks on employees before you hire them – especially the white collar ones. The defendant was hired as a computer technician. Shortly after the defendant started work, his employer learned that when the defendant had said that he had no criminal record, what he really meant was that he had three prior convictions.

Gold.

a.  coram nobis
b.  habeas corpus
c.  mandamus
d.  certiorari

You probably guessed correctly, but you’ll have to check the post to be sure.

My round-up of coverage on Skilling’s request several weeks ago, including links to substantive analyses of his arguments, appears here. 

Raymond Ward at the (new) legal writer links to a paper at SSRN (Social Science Research Network) by Professor Douglas Abrams called “Those Pesky Footnotes — Part I.”  According to Ward:

Professor Abrams divides footnotes into two groups that most of use are familiar with: citation-only footnotes and textual footnotes. Citational footnotes can be useful, Prof. Abrams writes, if they are kept lean. They show the support for the writer’s assertions without cluttering up the text. Textual footnotes, on the other hand, are usually useless to briefwriters for one simple reason: hardly anybody reads them. And anything that is not read cannot persuade.      

See Ward’s post for the links.

In a post with subheadings “In-Text Citation Bad” and “Footnotes Good,” Professor Wayne Schiess provides a wonderfully amusing illustration of why he feels that way.

Thanks to The Appellate Practitioner for the link.

Why do lawyers use forms (or “templates” or “precedent documents” as some prefer to call them) ?

To save time, to save money, to give clients a better value, and to take advantage of previous documents that have worked.

So forms are a necessity. No lawyer can get by in a typical practice today without them. The time and expense that would result from writing everything from scratch would be enormous. But forms have at least four drawbacks.

I don’t think the drawbacks he cites are much of a worry if you use common sense.  Prior briefs can provide an excellent starting point for research on an issue I’ve previously briefed.  But I would never dream of simply cutting and pasting. 

A fresh look at the research, writing and analysis is always necessary.  Do I need to go further?  Is the research up-to-date?  Is it really applicable to my present facts and legal situation?  Can the writing be improved?  Does the writing style fit my current project?  Ask these kinds of questions, and I think you’ll safely avoid the pitfalls Professor Schiess describes.

At the trial court level, most lawyers begin their briefs with an “Introduction” section. There’s nothing wrong with this approach, but it leads to the mistaken notion that you should actually put an introduction in the introduction. You shouldn’t.

And that’s just the “introduction.” Ba-dum-bump.  Read the whole thing.

I got this link from this post at Legal Writing Prof Blog, which has more.

Both posts have lengthy comment threads (Volokh’s is longer), with a great many defenders of the attorney — not for the billing, but for submitting the brief.  Many are also upset (rightfully so, to my mind) with the court’s apparent position that copying a string citation, including parenthetical comments, is plagiarism.

A couple of interesting comments, apparently on this last point, from the Volokh post (with links — gotta watch that attribution!):

From wm13: “What might happen to all those judges who tell counsel to write an order and they will sign it? What about an appellate court which finds a brief convincing and uses some of its phraseology in its opinion?”

From Happyshooter:  “All appellate court opinions around here would be plagiarism under that standard.”

DJR says that if the standards cited by the judge apply, “there are hundreds of judges who will need to start citing the bench memos and draft briefs written by their clerks so as not to intentionally pass off their “creative expressions” and ‘original ideas’ as their own.”

Bruce Hayden (or someone posting as him), who has an eponymous blog raises a question in the Volokh comments of relevance to alternative billing:

But when it comes to the client’s benefit, a plagiarized brief, article, etc. may be advantageous – if the attorney is honest about what he charges his clients.

For example, let us assume that an attorney can write a brief from scratch in ten hours or plagiarize it from someone else’s for two hours of work. I would sugest then that the client is typically better off if his attorney plagiarized AND only charged for the amount of work actually done, in this case two hours of work. So, at $100 an hour, the difference would be the client paying $1000 for the original version or $200 for the plagiarized version.

Of course, the attorney’s temptation is inevitably to charge the client for how much it would have taken to write the article from scratch (in this case $1000), even if it took much less time due to the plagiarism. But that brings us back to honesty…

I find this comment interesting because it is relevant to the rationale behind certain alternatives to the billable hour.  Consider one argument for “value billing” in a manner advantageous to the attorney.  Attorney completes a document for Client A using an hourly billing model that results in a bill of $3000.  When Client B comes into the office needing similar work, Attorney realizes that with only minor modifications, which Attorney can make in an hour or two, the document he did for Client A will meet Client B’s needs.  Realizing this, Attorney agrees to prepare the document for a flat fee of $3000.  Ethical?  After all, if the document is worth $3000 when produced for Client A, then isn’t it worth $3000 when prepared for Client B, even if it only takes an hour or two?

Of course, there are at least two problems with “value billing” the brief in the Iowa bankruptcy case: (1) the attorney isn’t taking advantage of his own prior work; and (2) the brief probably wasn’t of much value, as Volokh commenter Anderson points out: “But, come on, folks — you can’t possibly be zealously representing your client while submitting an article as your ‘brief,’ . . . It’s applying the rule to the facts that wins the case.”

As to copying one’s own work, Volokh commenter Justin claims that a lawyer in the Federal Circuit was sanctioned for that several years ago, but he doesn’t provide a link.  I can’t imagine the lawyer in that case was sanctioned for the copying.  I have to believe it had something to do with the billing.

Thanks to the (new) legal writer for providing the links.

He offers a list of helpful books.

The commenters on the post don’t seem particularly optimistic.

The blog posts I’ve seen on this credit WSJ.com’s Law Blog post as the first.  It includes a link to the brief and credit’s Skilling’s lawyers for “some nice rhetorical touches,” two of which it quotes.  While that post offers some bullet-point analysis of the arguments made in the brief, those truly interested (but who dont want to slog through the whole brief) should read the detailed analysis at White Collar Crime Prof Blog.

Of course, as How Appealing notes, the court first has to approve Skilling’s motion for permission to file the lengthy brief, which is more than four times the length permitted by the Federal Rules of Appellate Procedure.  To demonstrate the complexity of the case, that motion (PDF) notes that the record on appeal is nearly 47,000 pages long.

Ohio State law professor Douglas Berman at Sentencing Law and Policy posts about how this will likely stretch out the resolution of the appeal significantly.

The cleverly named Tex Parte Blog asks, “How much did that brief cost per page?”

Lowering the Bar’s take has the usual dose of humor, but is actually complimentary of the quality of the brief.

Finally, it’s interesting that a search for “skilling appeal brief filed” at Jurist reveals a single, two and a half-year-old mention of Skilling’s trial, but also advises: “http://www.calblogofappeal.com/2007/09/07/arguing-against-binding-authority/ What do you do when your only hope is to take a position that has been soundly rejected by the same appellate court in a prior case?  Well, you don’t do it by arguing for that position as if that bad case never happened and without citing it.  The Ninth Circuit is clearly a little peeved with the Department of Justice for doing just that in Singh v. Gonzales, case no. 04-70300 (9th Cir. Sept. 7, 2007):

It is the responsibility of the Department of Justice and its lawyers to be aware when its positions have been rejected by the court. While it is acceptable to make a rejected argument for purposes of preserving it for en banc or Supreme Court consideration while acknowledging that it has been rejected by the court, it is not acceptable to repeat an argument already rejected without acknowledging the case that rejected it, particularly where it is the Department of Justice itself that was involved in earlier case. Another such repetition of this same argument in this court will be considered sanctionable behavior.

Comedian Steve Martin used to joke that a lot of problems can be solved with two simple words: “I forgot.”  As in “I forgot to pay my taxes” or “I forgot killing someone was against the law.”

“I forgot about that binding case that soundly rejected the position I am advocating” works about as well.

Says Tom, “If true, this suggests a more focused approach for the federal appellate lawyer.”  There’s more, including a link to the study, at his post.

Of particular value to appellate lawyers is this point about the value of good thesis sentences to the writer:

Finally, thesis sentences are particularly beneficial for the legal writer who is seeking to persuade.  Psycholinguists (scientists who study the psychology of language) have discovered that readers subconsciously pay closer attention to things that come at the beginning and end of a document or a discreet unit of a document such as a subsection or even a paragraph within the overall document.  Armed with this knowledge, the persuasive legal writer is well-served to place the most persuasive information in a position where the legal reader is likely to pay greater attention.  The first sentence of a paragraph is such a position; thus, putting a strong statement about the law and how it advances the legal writer’s argument in that position is more likely to receive the notice of the legal reader.

You may have already known that readers react this way.  But that’s just the “why.”

Unless you’re writing great thesis sentences in your briefs — i.e., practicing the “how” — you’re not taking full advantage of the “why.”  Read Professor Higdon’s article for the “how.”

Unless I’m opposing counsel on one of your cases.  In which case, I’d prefer that you didn’t.

Thanks to Legal Writing Prof Blog for the link.