New Entry in “Worst Brief Ever” Competition

I’m beginning to wonder if I should start a new blog post category for “bad briefs.” I’ve told you about the Ninth Circuit dismissing a case as a sanction for briefing deficiencies and the California Court of Appeal explaining why a poorly written opening brief made it nearly impossible to discern the arguments being made. Now comes the “cut-and-paste” brief. As described by the First Circuit in the unpublished Rusli v. Mukasey, case no. 06-1941 (1st Cir. June 27, 2008) (citations omitted):

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.

Footnotes and Same-Sex Marriage

Not a pair of topics that you’d automatically put together, but bear with me . . . 

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.

Spoon-Feed the Appellate Judges

Richard PosnerImage via Wikipedia

Picture 3.png 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.

Narrowing Appellate Issues

D. Todd Smith makes a good point at Texas Appellate Law Blog in the context of explaining why he likes oral argument:

[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.

Low-Tech Proofreading

Redlines, spell checking, auto-numbering, auto-capitalization, auto-page numbering . . . has high-tech document creation made us lazy proofreaders?  For some great low-tech proofreading tips, see Beyond Redlines and Spell-Check: Proofreading Tips from the Dark Ages (PDF Download) from Delaware attorney John J. Paschetto, published in the February 2008 issue of The Practical Lawyer magazine

Hat Tip: Legal Writing Prof Blog.

Clearly, this is Blatantly Obvious

I was searching for an old post at Wayne Scheiss’s legal-writring blog and accidentally ran across this nugget from 2005 on use of the word “blatant”:

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.

JALWD Online

From Ray Ward at the (new) legal writer:

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!

If It was Good Enough for the Framers . . .

The Philadelphia Convention, 1787Image from Wikipedia

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!

A Reader’s Perspective on Appellate Briefs

It’s one of the first things we’re taught in a law school writing class: write to your audience. Clients, other attorneys, trial judges and appellate courts are four possible, and distinct, audiences, and you write differently for each of them.

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.

Who Thinks that Contractions Shouldn’t Should Not Be Used in Appellate Briefs or Other Legal Writing?

There are some grammatical “rules” that simply don’t make sense and can make your briefs more stilted if strictly followed. Two common favorites for being disregarded are: (1) don’t end a sentence with a preposition; and (2) don’t split an infinitive. I think most legal writers feel free, and rightly so, to ignore these “rules” when doing so makes for a smoother presentation. (Though Ray Ward says to be cautious about splitting infinitives.)

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?

That/Which Drives Me Nuts

Peeve time. The that/which distinction. If I had a nickel for every time a court opinion used “which” where it should have used “that,” I’d be rich. With misuse by the courts so widespread, it is almost tempting to mimic the courts’ misuse, lest the justices deem your correct usage an example of poor 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.)

The Unexplained Concurrence

Here’s an interesting Howard Bashman’s column that explores the phenomenon of third justices who “concur in the result” without further comment on the majority opinion. 

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.)

A Good Start

Good briefs frequently start with a statement that in itself “hooks” the reader by immediately arousing his interest and making him want to continue. The same goes for judicial opinions, I think.

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.

The Scope of Plurality En Banc Decisions

In a post from the weekend cleverly titled to include “Ninth Makes Up its Mind on Inability to Make Up its Mind,” Ninth Circuit Blog performs a great public service by providing resources to help understand the scope of “fractured” en banc cases decided by plurality opinion. Definitely worth a read, especially if you are relying on such authority and want to “nail down” its strength and limitations.

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.

One Blog I Never Want to Appear On

Ever run across some horrible writing in an opponent’s brief and wish you could broadcast it to the world?  Now you can.  Legal Literatus, the blogger at the  relatively new blog, Lawyers[‘] Writing Wrongs, gives you that outlet.  LL solicits your contributions and provides his e-mail address in the sidebar of his blog.

Hat Tip: Mister Thorne of Set in Style.

Front Loading Your Legal Writing

Wayne Schiess’s legal-writing blog begins a post about summarizing your points with a very absolutist sentence:  “Every legal document should begin with a summary of some kind.”  Hear, hear! 

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.

Legal Writing Podcasts from Suffolk

Suffolk University Law School has launched a series of podcasts, including a weekly podcast on legal writing, through Apple’s iTunes U.  Wednesday’s press release from the school is here.  Go here for Suffolk’s iTunes U portal, which tells you everything you need to know and provides links that will automatically open iTunes to Suffolk’s podcasts.

Thanks to Legal Writing Prof Blog.

Inmate Earns SCOTUS Review with Pro Per Cert Petition

Legal Writing Prof Blog reports on federal inmate Keith Burgess’s recent successful pro per cert petition. The post includes links to press coverage and to the petition itself.

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.