It might make a difference in how the members of the panel view your brief!
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.
When an appeal from a probate order starts by telling you that the intestate’s daughter, girlfriend of 12 years, and estranged wife all claimed portions of the estate, I’m betting most people will suspect that the opinion will be about a dispute between the girlfriend and the wife. If the case is Estate of Bonanno, case no. B200340 (2d Dist. July 22, 2008), though, you’d be wrong.
Turns out the dispute here is between the wife and daughter, and its not even about property per se. It’s about an order obtained by the wife to have her share of the estate (determined in a settlement among the three) pass to her without administration, which reduced the administration fees to the daughter.
That was two surprises for me in as many paragraphs!
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.
. . . who says it all depends on what the meaning of “is” is. A Ninth Circuit opinion filed today begins: “This appeal presents the single, seemingly straightforward question whether the word ‘is’ really means ‘is,’ at least as that word is employed in 25 U.S.C. § 81.”
And it turns out the answer isn’t that easy:
Motivated largely by the plain meaning of Section 81—but after also taking into account related statutes, relevant legislative history and the language of the contract itself—we conclude that the word “is” means just that (in the most basic, present-tense sense of the word)[.]
As if to prove the answer isn’t simple, there’s a dissenting opinion.
You’re busted in L.A. for soliciting prostitution. Worse, you happened to be inside your 2000 Jeep Cherokee when you were busted, so it gets impounded and the city initiates forfeiture proceedings. You oppose the proceedings, spending $49,735.90 on attorney fees. For your 5-year-old Jeep. Wow.
You win in the trial court, but go on an appellate court odyssey before everything is finally determined in your favor. The only downside is that your name and your arrest for solicitation of prostitution are now enshrined in a published opinion. But at least your name isn’t in the title: City of Los Angeles v. 2000 Jeep Cherokee, case no. B185673 (2d Dist. Feb. 7, 2008).