What's Your Style?

"People think that I can teach them style. What stuff it all is! Have something to say, and say it as clearly as you can. That is the only secret of style."
(Matthew Arnold)

Style is not something that immediately jumps to mind when discussing legal writing techniques.  In a profession that celebrates terms such as inter alia, ab initio, and yes, arguendo, the image of a staid world where all the lawyers wear gray flannel suits to work hardly connotes style or personality.

Still, legal writers can, and should, embrace a style all their own.  Read the opinions of Scalia, Posner, Kozinski, and Easterbrook.  There is something that stands out about their writing.  Far from the dense, turgid prose we (and they) read in law school, these writers use plain English, direct prose, a wide vocabulary, and routinely vary their sentence structure and length according to the ideas they wish to express and emphasize.  I recall Judge Easterbook once saying that lawyers should want their briefs to read like an article in The Atlantic.  That is, they should employ a breezy, relaxed style that gently guides the reader through the argument.  

Ultimately, this is the recipe for how to clearly communicate complex ideas to a broad, general audience.  This  may seem more apropos to the work of journalists, but lawyers too - especially appellate lawyers - are often called upon to articulate complex arguments to a panel of judges who adjudicate disputes across a wide array of legal disciplines.  To that end, lawyers must develop and refine a style, lest their work be lost and forgotten under the piles of sub-par briefs that are routinely filed in courts throughout the country.  This is incredibly difficult work, requiring as it does years and years of practicing the art of written advocacy, but the process starts with a simple question: what's your style?  

A Lesson from the Appellate Division, Second Department

....Never make an argument on appeal contrary to your client's position below.  Yet, this is exactly what the prosecution did in People v. Gutierrez-Lucero.    In this case, the defendant, who pleaded guilty to a sex offense, had been deported to Mexico before the commencement of a hearing to determine his sex offender classification level.  Both defense counsel and the People agreed that the hearing could not proceed in the defendant's absence, especially since there was no indication the defendant had even been notified of the hearing.  But, the court held the hearing anyway and adjudicated him a Level I sex offender.  

Rather than concede error on appeal, the People insisted that the Court affirm the ruling of the court below, claiming that no prejudice inured to the defendant since the hearing court levied the least restrictive classification possible.  

Big mistake.  In a signed opinion, the Court called the People's position "disingenuous."  Let the Court's terse opinion be a lesson to any appellate advocate who's even contemplating the idea of taking a position inimical to your client's contentions below.      

More Judge Kozinski

Readers of Arguendo know well that I am a Judge Kozinski fan, largely because he is one of the most engaging jurists on the federal bench (Seventh Circuit Judges Richard Posner and Frank Easterbrook and Supreme Court Justice Antonin Scalia are comparable rivals).  Funny, witty, honest, outspoken, and sharp are just a few of the adjectives I would use to describe him.  I especially enjoyed his insight into the opinion writing process.  But enough of the Kozinski lovefest.  Watch this interview.    

Finishing Strong

Seems like someone is channeling my Paul Clement post in which I explained that lawyers are, first and foremost, professional writers.  Though the suggestion is hardly novel, I do appreciate that more esteemed lawyers share the sentiment. 

The above post also reminds me that the corollary to opening strong is to finish strong too.  Far too many lawyers finish their argument with a whimper: "In sum, the People failed to prove its case beyond a reasonable doubt, therefore, the defendant respectfully requests that the conviction be reversed and a new trial ordered."  Nothing says "give me the relief I want" with a meek "respectfully request."  

A somewhat recent experience illustrates the importance of finishing strong.  A few years ago I was responding to a federal habeas petition in which the petitioner alleged that his trial attorney was ineffective for failing to call a false confession expert at trial.  On habeas review, the petitioner was represented by a gaggle of BigLaw attorneys, all of whom collectively wrote a very persuasive brief.  Indeed, it was one of the few times where I thought we would have a difficult time crafting an equally convincing argument.  The circumstantial evidence supporting the conviction appeared weak, and the record lent a reasonable - if not, strong - inference that the police had procured a confession from a low intelligence individual, who was no match for the aggressive interrogation he confronted.

But, then I read the response to the petitioner's state court post conviction memo that a former colleague of mine, who had handled the case previously, drafted.  I was truly impressed.  Riveted would be more accurate.  So convincing was his response that it led me to firmly believe that the petitioner's claim was little more than one giant smokescreen.  What I particularly remember was the final paragraph, a coup de grace that left me wishing I had written it myself:

"In sum, throughout the investigation of [the victim's] murder, petitioner focused solely on minimizing his culpability.  In furtherance of that goal, he spun a web of lies, and in so doing, he made a number of missteps.  When confronted with those missteps, he skillfully invented new stories designed to meet his ultimate goal of evading responsibility, of pinning this murder on one of his two accomplices.  Indeed, the defeat evidenced in petitioner’s mannerisms during the last interview was the product not of coercion, but of the consequences of petitioner’s own actions finally catching up with him.  Petitioner’s attack against his attorney for not procuring a false confession expert, even though “[l]ess than a half-dozen New York State criminal defense attorneys had ever attempted to offer a false confession expert at the time of [his] trial”, is yet another final, futile gesture to place blame on someone other than himself.  He should not be permitted to do so here, years later after his conviction.  Since the state court’s rejection of his claim was based on a reasonable application of Strickland, his petition for a writ of habeas corpus must be denied."

A great finish to an excellent argument, for it accomplished two things: it reiterated our theory of the case - trial counsel cannot be ineffective for failing to procure inadmissible evidence - and removed the dispute from its legal context and placed it in a more human, real world setting.  This is the kind of conclusion that doesn't simply persuade the court to accept your argument as a legal matter, bur rather leaves no room for the court to doubt that the result you desire is the moral one.      

False Confessions and the New York Court of Appeals

When Chief Judge Jonathan Lippman stepped into his role, he urged his colleagues to accept more criminal cases.  As an Appeals ADA, I had a vested interest on a couple of levels in Judge Lippman's announcement.  It meant that I would have more opportunities to argue before the New York Court of Appeals, an exciting proposition for any young attorney.  On the other hand, however, I knew full well that appellate courts of discretionary review generally do not announce they will re-examine a whole entire body of law just so they can reaffirm settled precedent.  The import of the Chief's statement was clear: change was in the offing.

While I don't have the statistics in front of me, they do bear out the widely held belief that the Lippmann Court has decided more criminal cases than it did under Judge Judith Kaye.  Some of those cases present more arcane legal issues (such as the propriety of joinder of offenses and post-release supervision), but they do include a headliner in People v. Thomas, and if it takes the case, People v. Aveni.  Both cases wrestle with the hot topic of coercive interrogations and false confessions.

Anyone who has watched Law and Order, or any other crime drama for that matter, has seen the police use trickery, deception and psychological mind games to elicit a confession.  In these shows, the police often misrepresent the strength of their case ("you better talk now and cut yourself a deal because we have DNA evidence and four eyewitnesses who identify you as the shooter"), or play the old good cop, bad cop routine in the hopes that the defendant will confide in the good cop.  On occasion, the police will isolate the defendant emotionally ("your best friend is rolling on you as we speak.  Heck, even your mother thinks you did it.").  Such tactics, however, are not per se improper (see People v. Tankleff, 84 N.Y.2d 882 [1995]).  The salient question is whether the subterfuge is so fundamentally unfair that it could induce a false confession or deny the defendant due process.  See id.  

It should hardly surprise, therefore, that application of this broad legal standard begets different outcomes on similar facts.  Hence, the divergent opinions in Aveni and Thomas.  In Aveni - which I discussed in a previous post - the female victim died of a drug overdose.  The police suspected the victim's husband, and brought him into the station house for questioning.  After reading the defendant his Miranda rights, the police, knowing the victim was dead, explained to the defendant that his girlfriend was at the hospital and it was imperative that the defendant tell them whether the victim ingested any drugs because "whatever medications the doctors giver her now could have an adverse effect on her medical condition."  The police further explained that if the defendant refused to "tell . . . the truth" and "[the doctors] give her medication, it could be a problem."  The detective's implicitly threatening the defendant with a homicide charge if he refused to admit to the killing worked: shortly thereafter, the defendant penned a written statement admitting he killed his girlfriend by injecting her with heroin. 

The Appellate Division, Second Department reversed, finding this tactic so unconstitutionally deceptive that it overcame the defendant's will.  At this point, the Court distinguished a seemingly dispositive precedent in People v. McQueen, 18 N.Y.2d 337 (1966).  As the Court explained:

[In McQueen,] the officers used mere deception by telling the defendant that "she might as well admit what she had done inasmuch as otherwise the victim, who she had not been told had died, would be likely to identify her," but did not threaten her with repercussions if she chose to remain silent.  In this case, by contrast, the detectives not only repeatedly deceived the defendant by telling him that [defendant's girlfriend] was alive, but implicitly threatened him with a homicide charge by telling the defendant that the consequences of remaining silent would lead to [her] death, since the physicians would be unable to treat her, which "could be a problem" for him. While arguably subtle, the import of the detectives' threat to the defendant was clear: his silence would lead to [his girlfriend's] death, and then he could be charged with her homicide."

Meanwhile, in Thomas, the defendant, who was charged with depraved indifference murder for the killing of his four month old son, "was interviewed by police on two separate occasions: for about two hours beginning around midnight on Sunday, September 21, 2008, and the next day, Monday, for approximately seven hours - from around 6:00 p.m. until 1:00 a.m. on Tuesday, when he was arrested."  During the first interview, defendant stated that he might have accidentally bumped the infant's head, but otherwise denied any knowledge or wrongdoing in harming the boy.  After expressing suicidal thoughts, the detectives took him to the local hospital's mental health unit.  Upon his discharge fifteen hours later - the doctors concluded he did not present a harm to himself or others - the defendant agreed to the detective's request to answer more of their questions at the police station.  Five hours later, the defendant confessed to killing the boy.  

The Appellate Division, Third Department found that the defendant's confession was voluntary.  In particular, the Court noted that the length of the interrogation, which spanned over two days and nine hours of questioning, but which included a fifteen hour break in between, was not so long as to render the defendant's statement involuntary.  The Court also found that a detective's misrepresentation - that the defendant better tell the truth about what he did to the boy so doctors could effectively treat him when, in reality, the boy was dead or likely to die - did not overcome the defendant's will because appealing to the defendant's parental concerns would make it more likely that the defendant would accurately describe how he killed the boy.

Hence, Aveni presents the question of the extent to which police may lawfully procure a confession by threatening repercussions against the accused while Thomas raises the issue of how long a police may question a defendant until they overcome his will.  Length of an interrogation and the environment under which it takes place, are the two main considerations courts use in assessing whether the defendant's resulting statement is the product of coercion.  It could be argued that, if the Court agrees to hear Aveni, it will signal a desire to give a more holistic explanation for what constitutes an unlawful interrogation.

Notably, Aveni and Thomas conflict with each other in a fundamental way.  In Aveni, the Second Department held that the detectives coerced the defendant into incriminating himself by threatening him with additional charges and the likelihood of his girlfriend's death should he remain silent.  Yet, in Thomas, the police used the very same tactic - i.e., tell us what you did to the boy so doctors could have a chance at saving his life - but the Court found the threat permissible.

Where, then, will the New York Court of Appeals draw the line between mere deception and coercion?  That line is extremely thin, and the Court, now more than ever, must carefully protect the rights of the accused while also ensuring that law enforcement is not unfairly stripped of the important tools it needs to arrest and prosecute guilty offenders.  This is not an area of law that lends itself to bright line rules so it is questionable whether the Court can provide any meaningful guidance to the lower courts in how they should assess the outer boundaries of a lawful interrogation.  Confusion may result; controversy almost certainly will. I look forward to seeing how these cases will shape the growing body of New York's false confession jurisprudence.  

On Forms - Revisited

Forms are a deadly trap for the appellate advocate.  Brief-writing is bespoke work, requiring as it does hours upon hours of thinking, researching, writing and editing.  So why approach the process like it is a commodity?  A persuasive brief is one that is memorable, and memorable briefs - i.e., those compelling briefs that pull the court in with rapt attention - are those that don't  follow the same formula and rehash the same canned arguments like so many briefs that clog the courts. 

Appellate lawyer and blogger Raymond Ward had an insightful post on the use of forms.  Aptly entitled, Following Forms is a Sad Way to Write," Ward quotes thus: 

The formulas are old wineskins. Your ideas are new wine. Don’t pour your new wine into old wineskins.  See Mark 2:22.  

True, forms are easy.  All you need to do is copy and paste.  Hours of work can be reduced to a couple of clicks of the mouse.  The efficiency is attractive and tempting.  But, at a certain point, efficiency comes at a cost - the cost of making original, thought provoking arguments.  Stand athwart the forces of commoditization that have penetrated the discovery process and that threatens to corrupt the practice of law in general.  In litigation, brief-writing, deposition and trial practice are the last areas in which the advocate can separate himself from the pack of lawyers that crowd the market.  Creativity - not ruthless efficiency - will add value to your clients.  To adopt the latter approach is self-defeating.  It only cheapens your value as an attorney.  

Is There An App For That?

These days people are developing apps for everything.  M friends and colleagues like to show off their apps, and while there are some that incorporate some amazing technology, my immediate response is, "do I need it?"  "If I were to get the app, would I even use it?"

I readily concede I am not an app person (I'm still learning to navigate the keypad on my iPhone), let alone a technology guru, but I just may take a peek at the new legal writing app.  Comprised of the three sections - Legal Writing Tips, Legal Writing Checklist and Additional Resources - the app seems to be a useful guide to review before you draft the brief and again during the self-editing process.

Get it here on iTunes.  

Advice from Samuel Johnson

“The greatest part of a writer’s time is spent in reading, in order to write; a man will turn over half a library to make one book.”

—Samuel Johnson

Lawyers: you are what you read, and most of what you read in law school was mediocre at best.  Stated less charitably, the cases you read were incomprehensible.  That legal scholars still find new interpretations to Erie Railroad demonstrates that the seminal cases we read - the ones we read over and over in preparation for class - were far from models of persuasive writing. 

A lesson: when you read, read well because to write well, you need to read well.  Stack your nightstand with a few political books.  Study how the author builds the argument around a theme.  Or, even read a John Grisham novel.  Learn how to weave a compelling narrative through the use of vivid, direct prose.

Because if you don't read well, you write briefs in the mold of Erie.   

Giving Thanks

As we near Thanksgiving Day and all the joys it brings - among them family, football and turkey - it is time that we remind ourselves of what we are thankful for as attorneys.  Lawyers are a sarcastic, pessimistic bunch so I would not be surprised to hear that the knee jerk response is "not much" in light of the fragile, anemic state of the economy.  True, these are challenging times.

Though we remain uncertain of our futures, we still have work to do and this work we cannot complete without the invaluable assistance of the paralegals and assistants who staff our projects.  This is especially true in litigation where often the assistants and paralegals have been filing briefs and building relationships with court staff longer than we have been practicing.  

I am especially reminded of the help I received when I read this tribute on The Volokh Conspiracy to Emily Spadoni, a long-time assistant in the United States Solicitor General's Office.  Spadoni, who recently retired, was apparently one of those dedicated assistants who had amassed a deep institutional knowledge of the details surrounding Supreme Court practice, and who brought that knowledge to bear in her daily work, ultimately benefiting the august office she served. 

For my part, I have lost count of the number of occasions a paralegal or assistant helped me out of a jam.  So, on this Thanksgiving Day, be thankful for the paralegal or assistant who has supported you on a project and who went the extra mile to ensure you filed your brief met the court's formatting requirements.  Without their help, we would have even less work than we have now.     

The Creative Process

"In writing, there is first a creating stage--a time you look for ideas, you explore, you cast around for what you want to say. Like the first phase of building, this creating stage is full of possibilities."

-Ralph Waldo Emerson

As an appellate attorney, I enjoy each stage of the writing process, but none more so than the creating stage, i.e., the time where the lawyer has finished digesting the record and starts formulating a theory of the case.  The large, yellow legal pads are removed from the desk drawer, and arguments are jotted down in no particular order.  Calls are made to colleagues and mentors to gain their perspective on the issues.  At some point - hopefully sooner rather than later - the argument crystallizes, and I can almost picture the paragraphs on the page.           

Inexperienced writers often skip this process altogether and start writing immediately after reading the record.  This is a recipe for a certain kind of writer's block.  Far from lacking arguments to raise, the lawyer has too many.  Overflowing with ideas, the lawyer drafts his argument without a cohesive, central narrative that ties those contentions together.  As a result, the lawyer neglects to inform the reader of the "who, why, what, where and when" and comes out of the gate swinging, making all sorts of arguments that seemingly have no relation to one another.  The finished product is a brief without a spine.  Stated differently, the lawyer's argument is mush, and the judges and law clerks cannot summarize the claim into a simple, declarative sentence. A lawyer who drafts this sort of disorganized brief should be prepared to face a very confused panel at oral argument.

Every appellate lawyer is naturally brimming with ideas after reviewing the record. At this point, you must apply the brakes.  Do just enough research to ascertain the general framework under which the court will decide the case.  Ask yourself the simple question: why does my client win?  Answer that question in a sentence or two.  Then write the opening paragraph, and outline the argument.  All those seemingly unrelated arguments will flow from your nutshell summary.

At oral argument, you will be glad you took this time when the panel, rather than expressing confusion over what you are trying to convey, is hammering your adversary with selected phrases from your brief.    

On Writing Styles

Over at Lawyerist, Matthew Salzwedel has an interesting piece that discusses the two main schools of  writing styles, the Asiatics and Atticists.  As usual, I'll let Salzwedel's article speak for itself, but I will leave you with this simple formula.  For an example of the Asiatic tradition, you should dust off your old casebooks (assuming you did not resell them to the school bookstore for pennies on the dollar), and re-read every ancient torts and contracts you can.  Anything pre-1970 will do.  Think Erie Railroad.  

For the Attic style, you should retrieve your high school English book, and read the "plain, unadorned style" of Thoreau:     

I went to the woods because I wished to live deliberately, to front only the essential facts of life, and see if I could not learn what it had to teach, and not, when I came to die, discover that I had not lived. 

Ironically, the elements of good legal writing are learned in secondary school.  Go figure.

The State of Legal Writing Education

A crucial skill for any advocate is to know the audience.  The question of who are you trying to persuade is perhaps the most basic.  Yet, many lawyers write a draft before asking themselves this fundamental question, assuming they even ask it all.  Unfortunately, this largely results from structural flaws in a lawyer's training both during and after law school.

A common mistake for many lawyers is to raise every conceivable issue they spot in the record.  We can thank law school for this habit.  There, students are trained to an unnatural degree to issue spot.  Come exam time, students secure points on an exam - and in turn earn higher grades - based on the number of issues that the student spotted in a given fact pattern.  True, the student must identify the correct rule and analyze the issue to a reasonable conclusion.  But, as my Property professor candidly told my section, "we professors  simply speed reading through your exams and are merely looking to check off a list of issues; therefore, you should spot as many issues as you can and worry later about whether you applied the correct rule."  No wonder so many attorneys equate "spaghetti on the wall briefs" as the epitome of quality analysis.   

The training hardly improves after graduation.  At a small law firm, where the vast majority of newly minted lawyers start their careers, the managing partner on a case is usually dealing with the pressures of satisfying client demands and developing new business - not to mention tending to a host of other administrative tasks  - all while managing an independent caseload.  Faced with these challenges, the partner will predictably lack the time necessary to mentor the young lawyer, who, in this environment may practice for a number of years before receiving substantive advice on what constitutes effective, let alone superior, advocacy. 

For my part, I have been very fortunate to receive feedback on my writing from a number of mentors.  I'll never forget when a senior attorney read my long-winded argument, and asked rhetorically, "have you seen the caseload these judges carry?  Do you even know how many recommendation memos the court attorneys write - and the judges read - in a single week?"  At his advice, I read as many of his briefs as I could.  To this day, I don't think there is anyone better at communicating complex issues in clear, direct prose.  And, because of his guidance, I routinely imagine an overworked law clerk surrounded by multiple stacks of records and briefs whenever I sit down to write a draft.  Clearly, I have internalized the lessons from my mentors, but my experience is vastly different from that of my peers, many of whom are left to figure out for themselves how to best develop their writing skills.  That I am the exception and not the rule is an indictment on the current model, which foists the burden of training on a class of employers entirely unsuited to the task.

The good news is that a few prominent law schools such as Northwestern and NYU have begun experimenting with the curriculum in a response to the challenging (or to put it more accurately and bluntly, putrid) job market.  This new curriculum should include some sort of required intensive writing program in a clinical setting so the young associate is "brief ready" upon graduation.  The current model, wherein even the high achieving students are rewarded with exposure to some of the most turgid, muddled writing the legal world has to offer, under prepares young lawyers for the challenges they will face in serving clients through written advocacy.  Here's to hoping that the academy will respond to the demand for better legal writing.  

The Value of Oral Argument

An eternal debate among appellate advocates is whether oral argument makes a difference in the outcome of a case.  Of course, that the question is even up for discussion betrays the bar's skepticism toward this   integral part of the appellate process.  In fact, this wary attitude is apparently held by the courts too, as evidenced by the nationwide trend in limiting the time available for oral argument and/or limiting argument to the court's discretion.  In this regard, Justice Ginsburg's statement nicely summarizes the prevailing view: “[o]f the two components of the presentation of a case, the brief is ever so much more important.  It’s what we start with; it’s what we go back to."

Why attorneys remain skeptical of the value of oral argument is hardly a mystery.  After spending numerous hours on reading the record, researching the issues, and writing and editing the brief, the attorney will usually have a firm grasp as to the strength of the case by the time the oral argument date arrives.  At oral argument, the tenor of the panel's questions will usually confirm the attorney's initial belief as to whether the case is winnable.  Hence, the attorney, well aware of the case's numerous weaknesses, will predictably face a barrage of hostile questioning while the attorney with a strong argument will unsurprisingly encounter light questioning, assuming the attorney receives any questioning at all.

It often seems that the decision has already been written before the case is called to the calendar.  Despite the perception that oral argument is a futile exercise for everyone involved, lawyers have much to learn from the experience, regardless of the outcome.  Sometimes, the panel will approach an issue from a wholly different perspective than the parties.  Thus, a sharply contested point may not be all that important to the  case's disposition.  Conversely, an uncontested issue may be of paramount importance to the court.  At oral argument, lawyers may also be surprised to find secondary and tertiary issues are at the forefront of the panel's collective mind.  Or, they may be equally surprised to hear the court suggest that the mattet, which at first glance appears to turn on the facts, ultimately hinges on a novel issue of law.     

Time and again I have been quite surprised by how a panel will take a completely different and unexpected approach to the issue at hand. This is what keeps me from caving to the temptation of throwing up my hands and exclaiming, "what's the point?"  For the appellate advocate, the value of oral argument lies not in whether the attorney can win the case here, but whether the attorney can glean insight into the court's thinking on an issue.  With every argument, the attorney gains institutional knowledge of a court's approach to a legal issue, and can bring that wisdom to bear in future cases.  This is invaluable knowledge for any appellate attorney.  Just ask any former law clerk.

On Judicial Elections

Unless you've been living under a rock for the past 18 months - during which time the presidential campaign has seemingly been running non-stop - today is Election Day.  For better or worse, the country will elect a president - though I anticipate that a winner will not be called until the early morning hours, or God forbid, the outcome will remain contested in the days to come with the apparent losing candidate refusing to acknowledge defeat.  Meanwhile, as the dust settles, the national conversation will pivot toward the 2016 presidential election and speculation as to the next crop of likely candidates will begin.  Topics such as whether Hillary Clinton throw her hat into the ring again, or whether Marco Rubio is ready for the big stage, will be a source for endless discussion on evening cable TV talk shows.   

These are all interesting issues for discussion, but the more relevant election day topic for me is one that bears directly on my practice - that being the issue of judicial elections.  Stepping into the voting booth, I saw what had to be a dozen openings on the judiciary.  I recognized all the names from the signs lining the major roadways in the county, but had more than a passing familiarity with only one candidate: an incumbent I have appeared before on numerous occasions throughout my career.  Other than that, the rest were unknowns. 

I oppose judicial elections.  However reluctantly, we all accept the reality that our elected officials, whether they be congressmen, presidents, senators, assemblymen, etc.. have constituencies.  The law and order Republican must pander to the police unions and the "I fight for the working class Democrat" must kowtow to the labor unions.  Until someone finds a better form of organizing society other than republican democracy, lawmakers will have to assemble constituencies in order to successfully drive through their legislative agenda.  Quite simply, this is the reality of (small "r") republican politics. 

Why, then, should this be the case for the one branch of government that should keep a healthy distance from the often tawdry world of politics, and whose job is often to clean up the mess our  elected officials leave behind?  When a District Attorneys oversteps the bounds of his office in prosecuting an alleged cop killer, do we want the law and order judge, who secured a police union nomination on his path to victory, to preside over the matter?  Do we want the judge whose election resulted from the support of several powerful labor unions to preside over labor disputes?  I think these questions answer themselves.      

I don't imagine a world where judges magically shed their biases and leave them at home.  As individuals, judges bring with them their lifetime of experiences to adjudicating disputes.  A former prosecutor, for example, will view criminal cases in a different light than would the veteran public defender, sometimes in ways you might not expect.  But, judicial elections fail to pass what I call the gut check.  Quite simply, it does not sit well when a public official whose job description is to serve as a neutral arbiter has more than a minimal amount of loyalty to a politically powerful group.  

Judicial appointments, itself a political process, are not a perfect system.  Even so, they are less political than the electoral model, and though I am loath to give Mayor Bloomberg credit in some areas, I must give him and his predecessor Mayor Giuliani credit for establishing a relatively political-free process in their judicial nominees.  Their nominations arrived to the bench from varied backgrounds.  Some were lifelong prosecutors while others were veteran public defenders, corporate attorneys, law clerks, or solo practitioners.   I can only recall a few instances where the mayor elected not to reappoint a judge, and in those instances, there was a broad consensus that individual was unfit for office.  

Perhaps New York City's appointment system should serve as a model for other jurisdictions.   I don't pretend to know the answer.  Indeed, there are many experts who have studied this issue much more closely than I have.  But, I have to think there is a better way of selecting judges for office other than  the current electoral model.  Something for lawyers to think about on this Election Day.

Paul Clement

Those who follow the rarefied world of United States Supreme Court practice are undoubtedly familiar with Paul Clement, the former Solicitor General who has argued sixty cases before the  Court and whose most notable case was his representation of the twenty-six states in their attack against the Patient Protection and Affordable Care Act, otherwise known as Obamacare.  Clement is primarily known for his superior oral advocacy skills, and just a quick listen to any one of his arguments confirm that his reputation is well-deserved.  Indeed, I implore anyone interested in learning more about the fine art of oral advocacy to carefully study a few of his arguments.

Less widely known, however, are Clement's writing skills, which are equally crisp as his polished oral advocacy skills.  Perhaps for this reason, legal writing expert Ross Guberman examines Clement's brief in the Obamacare case, and provides five basic tips for how lawyers can improve their writing style.

I won't summarize Guberman's excellent analysis for why Clement is such a gifted writer.  I'll let his piece speak for itself.  But, the overarching theme from Guberman's examination is this: the great legal writers of our time are not merely great legal writers, but they are, quite simply, accomplished writers whose prose can go toe to toe with that of other literary giants.  As Guberman states, "[I]f you stripped this brief of its citations, you’d have an example of sterling English prose, not just an example of good legal writing."  

That, my friends, is precisely the recipe for what constitutes great legal writing.

On Opening Strong

I have seen this scene play out countless times during oral argument.  The lawyer representing the appellant takes the lectern and begins thus: "Your Honors, this case arises from a slip and fall on the sidewalk outside the defendant's grocery store.  We moved for summary judgment and defendant cross-moved for summary judgment too.  Unfortunately, the court below granted summary judgment in favor of the defendants.  We appealed because Judge McGillicutty did not consider relevant evidence in favor of my client.  Specifically, we believe this decision was erroneous because ..."  

The lawyer's opening statement is so gripping that a member of the panel inevitably interjects: "Counsel, we are familiar with the basic facts and procedural history.  Let's get to the argument."  At this juncture, the lawyer will heed the judge's request and get to brass tacks; lawyers of a lesser caliber, meanwhile, will persist in delivering their prepared remarks.   

With precious few minutes available for oral argument - appellate courts routinely bargain the attorneys down to as little as five total minutes - why attorneys insist on opening with bland, unimaginative "arguments"such as the one above remains a mystery.

Pull the panel into your argument:  "Your Honors, the court below erroneously granted summary judgment in favor of the defendants because it improperly discounted evidence that created an issue of fact on the issue of liability.  On page 72 of the record, defendant admits that...."

Crisp and to the point.  Open strong.  

Beware the Adverb

"The road to hell is paved with adverbs." - Stephen King

The fast track there begins with the overuse of "clearly" and "obviously," the favorite adverbs of the novice legal writer.  All part of one of the appellate advocate's most important rules: show, don't tell.

Well Said

Hat Tip to Kevin's Corner. 

In Praise of Judge Kozinski

Ninth Circuit Court Judge Alex Kozinski is quite entertaining.  He is a justice in the mold of Antonin Scalia.  Regardless of whether you agree with his judicial philosophy, one thing is for certain: he engages the audience.  Indeed, reading just a few of Judge Kozinski's writings impresses the reader with the belief that his worst fear is to become an old, irrelevant bore.  Judging by a recent decision he rendered, wherein he penned a lone dissent from an en banc opinion to explain that he was "disagreeing with everyone," Judge Kozinski has little reason to worry.

In any event, my late night browsing uncovered a few of his older musings on appellate advocacy.  His advice on how to lose an appeal does not disappoint.  To wit:

"But what if you think the judges might nevertheless read your brief and find a winning argument? You go to step two. Having followed step one, you already have a long brief, so you can conveniently bury your winning argument in the midst of nine or ten losers. I saw a wonderful example of this recently. It was the duel of the Paul Bunyons; who could fell more trees in pursuit of their cause? There were several appeals, motions and petitions for extraordinary writs--the whole shebang. There was not a winning argument, until a diligent law clerk waded through the rubble and found an issue that stood a good chance of winning. Eager beaver law clerks like that don't come along in every case, but still there's a danger: What if a clerk--maybe even the judge--should happen to stumble onto your winning argument? To guard against this, winning arguments should not just be buried, they should also be written so as to be totally unintelligible. Use convoluted sentences; leave out the verb, the subject, or both. Avoid periods like the plague. Be generous with legal jargon and use plenty of Latin. And don't forget the acronyms or the bureaucratese. In a recent brief I ran across this little gem:

LBE's complaint more specifically alleges that NRB failed to make an appropriate determination of RPT and TIP conformity to SIP.

Even if there was a winning argument buried in the midst of that gobbledygook, it was DOA."

Judge Kozinski is funny, captivating, and his criticisms relevant and incisive.  Want more?  Click here for his view on why law school moot court is divorced from the practical realities of appellate practice. 

Using Cases as Illustrations

"[T]he fact is that in his brief, the lawyer seems oppressed with the feeling that his reasoning must be the servant of his authorities, with the result that his argument often becomes heavy from forced subordination, when it might be lightened by using the cases merely to illustrate, like pictures in a book." - Howard C. Westwood

Appellate advocacy is not merely a contest of "I cited the most relevant cases; therefore, I win."   Let the case law take a back seat to the argument.  String cites - especially for indisputable propositions like the standard for summary judgment - are not a substitute for thoughtful legal analysis.  Larding up the brief with authorities convey the impression that the lawyer has nothing original to say, thereby rendering him unable to assist the court in deciding the case.  Write a story; not a treatise.  

The Appellant as Presidential Challenger

The conventional wisdom of the 2012 presidential race is that Governor Romney must give undecided voters a legitimate excuse to vote against President Obama, who remains personally likable among independents, despite their widely held belief that he has failed to failed to fulfill the promises he made upon entering office.  According to this popular notion, Romney can't take an overly aggressive stance against the president, lest he turn off the independents he desperately needs to secure victory.  Though many in Governor Romney's own party are hardly shy in expressing their distaste of President Obama's policies, pundits argue that Governor Romney must offer a more delicate touch, and campaign on a theme  of promises broken and goals unachieved. 

This is not to say that Governor Romney has never veered from this theme.  Indeed, one could argue that Romney's confrontational style in both debates undermined the general tone of his campaign.  The point is, rather, that Governor Romney has had to walk a fine line in vigorously pressing his case against President Obama without letting it degenerate into a full frontal ad hominem attack against the president himself. 

 

In appellate advocacy, the appellant, placed in the difficult position of arguing that the lower court committed error, must walk the same fine line.  He must vigorously advocate for his client, but, in doing so, can easily allow emotions take over and let the argument's tone deteriorate into of anger and self-righteousness.  This danger is especially pronounced when the losing trial lawyer drafts the appellate brief.  Having expended a tremendous amount of time and energy litigating the case below, the attorney may unintentionally use the brief-writing experience as a cathartic exercise and spill his bottled-up frustration onto paper.  But, this works to the client's detriment.  After all, many appellate judges served as trial judges; absent a crystal clear record, they are loath to accept the notion that their counterparts below acted in bad faith.

 

This, however, does not mean that appellate court judges don't believe that their counterparts below make mistakes.  Reformulate "the trial court flagrantly ignored dispositive precedent" to "the trial court overlooked binding case law" or "unfortunately, the lower court did not consider."  Like the independent voter, the appellate judge needs a reasonable excuse to reverse.  Building an argument based on a theme of disappointment and regret, and not one of bitterness and acrimony, will do just that.         

On the Knife's Edge

A common perception held among trial attorneys is that the die has been cast by the time the case arises on appeal.  Neither party can introduce new facts into the record.  Nor can they raise new claims not raised below.  Combined with the usual deference the appellate court must afford to a trial court's ruling, some attorneys fall into an "it is what it is" approach to litigating the appeal.   

This fatalistic view is not without support since the vast majority of appeals result in a unanimous affirmance.  Indeed, for the appellate attorney who frequently represents the appellant, merely obtaining a favorable lone dissent can feel like a victory.   

So, yes, litigating an appeal can sometimes feel like a rote process.

Except when it's not.

Take, for example, the recently decided case of People v. Aveni.  In Aveni, the female victim died of a drug overdose.  The police suspected the victim's husband, and brought him into the station house for questioning.  After reading the defendant his Miranda rights, the police, knowing the victim was dead, explained to the defendant that his girlfriend was at the hospital and it was imperative that the defendant tell them whether the victim ingested any drugs because "whatever medications the doctors giver her now could have an adverse effect on her medical condition."  The police further explained that if the defendant refused to "tell . . . the truth" and "[the doctors] give her medication, it could be a problem."  The detective's implicitly threatening the defendant with a homicide charge if he refused to admit to the killing worked: shortly thereafter, the defendant penned a written statement admitting he killed his girlfriend by injecting her with heroin. 

The Appellate Division, Second Department reversed, finding this tactic so unconstitutionally deceptive that it overcame the defendant's will.  At this point, the Court distinguished a seemingly dispositive precedent in People v. McQueen, 18 N.Y.2d 337 (1966).  As the Court explained:

[In McQueen,] the officers used mere deception by telling the defendant that "she might as well admit what she had done inasmuch as otherwise the victim, who she had not been told had died, would be likely to identify her," but did not threaten her with repercussions if she chose to remain silent.  In this case, by contrast, the detectives not only repeatedly deceived the defendant by telling him that [defendant's girlfriend] was alive, but implicitly threatened him with a homicide charge by telling the defendant that the consequences of remaining silent would lead to [her] death, since the physicians would be unable to treat her, which "could be a problem" for him. While arguably subtle, the import of the detectives' threat to the defendant was clear: his silence would lead to [his girlfriend's] death, and then he could be charged with her homicide.

(emphasis added).  Subtle indeed.  Aveni highlights and validates the appellate specialist's work.  Oftentimes, the appellate attorney is called upon to carve out fine distinctions in the hopes of winning the appeal.  To this end, the attorney logs countless hours polishing, editing, and massaging the distinction.   And many times the nuanced argument falls on deaf ears.

Except when it doesn't.

Persuasive appellate counsel can make a difference.  

Taking Cue from the Judiciary

Trial and appellate judges alike frequently lament the poor quality of legal writing contained in briefs and memoranda of law.  I too share these concerns, as evidenced by the various posts in this blog itself.  However, it's hard for anyone to take the judiciary's complaints seriously when it publishes the following:

In an action to recover damages for breach of contract, the defendant appeals, as limited by its brief, from so much of (1) an order of the [lower court], dated March 31, 2011, as, upon reargument, in effect, vacated the determination in an order of the same court dated November 10, 2010, denying the plaintiff's cross motion, in effect, to vacate the dismissal of the action pursuant to CPLR 3216, for leave to intervene in the action, substitute himself as the plaintiff in the place of Amer-A-Med Health Products, Inc., as assignee of Heather Goldberg, Annette Guerro, and Sarah Johnson, amend the caption accordingly, and serve a second amended complaint, and for an extension of time to file a note of issue, and thereupon granted the cross motion, and (2) an order of the same court dated July 19, 2011, as denied that branch of its motion which was to dismiss the class action allegations set forth in the second amended complaint, sua sponte certified the class, and, upon reargument, adhered to the determination in the order dated March 31, 2011. 

Crystal clear, right?  Now, in all likelihood, a judge did not pen the above description, but rather an overworked and stressed court attorney who decided to use a convenient template.  Still, courts should move away from this form of sloppy writing (I can pull many other  similar examples from this court's decision list and others).  Though the decision is nearly incomprehensible,  it will enter the official reports unedited, thereby conveying the impression to the general public - and specifically attorneys - that it deems this sort of careless writing quality prose.

Simply chopping up this record long run-on sentence into several shorter ones (i.e., "Plaintiff commenced an action against defendant for breach of contract.  Defendant appealed the denial of its motion to dismiss, claiming....") would go a long way toward reinforcing the judiciary's criticisms.

In Defense of Formality

I have always admired Supreme Court litigator Tom Goldstein, mainly because of his success story. Lacking the requisite clerkship and Ivy League credentials to gain entry into the Supreme Court bar, Goldstein decided he would make it on his own.  His approach was unorthodox for the time: he would scour the federal reports for circuit splits and contact the parties directly to solicit their business.  Goldstein's hustle paid off: he founded his own firm, was elected to the partnership at Akin Gump where he co-headed the firm's Supreme Court practice during which time he founded the highly influential SCOTUSBlog.  

As a result, Mr. Goldstein has enjoyed the privilege of arguing on over two dozen occasions before the Court.  Because of the frequency with which he has appeared, he has had the luxury to act a little more at ease at the dais than, say, an advocate making his first appearance.  

Mr. Goldstein's latest argument in Moncrieffe v. Holder, however, highlights the danger of being just a bit too relaxed at oral argument.  As described by SCOTUSBlog writer Lyle Denniston, "[Mr. Goldstein] has a habit, sometimes disarming to the Justices, of being a little bit too familiar, and a little too fast with a quip."  According to Mr. Denniston, Mr. Goldstein deployed a boxing analogy - since the case preceded the more widely publicized of Fischer v. University of Texas, he called his case "today's undercard" - that fell flat at the bench. 

To be fair, Goldstein simply told a bad joke to open his presentation.  A sin, but hardly cringeworthy.  For an example of the latter,  I witnessed one argument wherein lawyer representing a co-op owner in a dispute with the board directly attemptws to elicit the judge's sympathy by saying, in effect, "Justice So and So, you live in a co-op so you know all too well the hurdles this board made my client jump through."  A well-known litigator from a highly regarded New York firm took a similar approach in another case: "Your Honor, you once served as counsel to the governor so you must be very familiar with the difficulties inherent in crafting crystal clear statutory language."  A few judges exchanged knowing glances while the lawyers in the gallery shifted uncomfortably in their seats. 

The takeaway is this: never veer from the formal environment that dominates an appellate oral argument, and always stick to the record and issues at hand.  Even if the justices roared with laughter at Mr. Goldstein's joke, it would not have done little, if anything, to advance his argument.  Meanwhile, the lawyers above who expressed an almost feigned familiarity with the judges on the panel came across as fake.  Rarely has an advocate lost credibility by taking too formal approach to presenting his case.  Stick to the basics and let your mastery of the record and issues build your credibility.

Billable Hours

Most lawyers loath the billable hour, and wish it would go the way of typewriters and book research.  Yet, despite sharing a near universal hatred for accounting time in six minute increments, there are those who claim that the billable hour will remain the predominant form of billing for the foreseeable future - despite the clamor from clients large and small to move toward alternative billing arrangements - and those few, happy warriors who find the billable hour structure so deeply flawed and inimical to delivering quality client service that they put pen to paper in the hopes that spreading their ideas will lead to a critical mass that will ultimately dismantle the billable hour once and for all.  

 John Derrick, a California appellate attorney, is firmly in the latter camp, as evidenced by a book he published in 2007 entitled Boo to Billable Hours.  As described by the publisher:

"The billable hour dominates the legal profession, but is eating away at its soul. It chills the attorney-client relationship. It penalizes efficient lawyers, while rewarding plodding ones. It leads to arbitrary, irrational, and suspect results, in which time is distorted and sometimes invented. It disconnects the amount that is charged from the value delivered. And it fails to produce what it promises, transparency. Its effects are all the worse in law-firm pyramids that impose excessive billing requirements. This straight-talking book critically dissects the practice of billing by the hour in the practice of law, examining how time is actually recorded in a variety of contexts that raise ethical as well as practical concerns. It also tracks the history of the billable hour, showing how we got to where we are today. The book is not all about criticism, however. It also advocates alternatives that shift the focus away from time expended and onto value delivered"

In the book, Mr. Derrick undoubtedly draws on his experience as an appellate attorney. Indeed, on his firm's website, Mr. Derrick states:

"I prefer to handle appeals and writs on a flat-fee basis, as opposed to charging by the hour. The scope of work in an appeal is more predictable than in pre-trial and trial work. Flat fees provide clients with certainty about the cost. And they enable the lawyer to develop legal theories in a creative way, without constantly worrying whether exploring certain avenues can be justified by the extra hourly charges. If you are concerned that flat fees will provide a lawyer with an incentive to do less work, then you are looking at the wrong lawyer. (emphasis added)"

In the current economic environment, lawyers are rarely in a position to reject work if the client wishes to remain on the clock.  Should the lawyer decide to keep the client, though, the lawyer should advise the client that the billable hour undermines the quality of an appellate lawyer's craft, which requires a significant amount of trial and error and the testing of a number of legal theories.  

By contrast, flat fees free the appellate lawyer to explore the nuances underlying the client's case and to create a highly polished work product.  This result can only be achieved through large amounts of time spent researching, writing, and editing, editing, editing.  Thus, appellate work requires time and lots of it.  A system that pressures appellate lawyers to spend fewer hours on their work will result in an inferior work product.

The profession is well-served by the John Derricks of the world, who move beyond the lament that billable hour pressure is a major source of lawyer unhappiness to make the more relevant claim that, above all, the billable hour is a central barrier to delivering superior client service.    

Show, Don't Tell. Brief-Writing Advice from a Literary Pro

“Don't tell me the moon is shining; show me the glint of light on broken glass.”- Anton Chekhov

The Appellate Record

Years ago I was perusing the various legal writing and appellate practice blogs that populate the Internet, and I encountered The Appellate Record by Kendall Gray, Jr.  The posts were interesting, but sporadic, and understandably so considering that Mr. Gray is an appellate lawyer and partner at Andrews & Kurth, LLP. 

Recently, however, Mr. Gray has made the time to share his insight.  After just a few minutes of browsing his posts, I can say that the appellate practitioners will appreciate his return.

I particularly enjoyed this piece of advice: develop a story, not a timeline.  A rendition of the facts should establish the scene and set up the narrative.  Contemplate for a moment the opening lines of the greatest novels and movies:

"It was the best of times, it was the worst of times."

"A long time ago, in a galaxy far, far, away"

"Elmer Gantry was drunk."

Mr. Gray's examples made me think of the opening lines of classic children's books:

"In the great green room there was a telephone and a red balloon and a picture of... The cow jumping over the moon"

'Twas the night before Christmas, when all through the house.  Not a creature was stirring, not even a mouse"

How we learn stories as a child informs our understanding of classic literature and movies.  That is, we understand disputes - and a legal dispute is merely another type of conflict - through the ingredients that make a story, i.e.,  characters, setting, and plot.  

In any event, I highly doubt this is the last time we will discuss Mr. Gray's blog.  I highly recommend it to any lawyer interested in learning the art of appellate advocacy.  

A Brief's Curb Appeal

In legal writing, we lawyers care little about the fonts in our brief, and write in Times New Roman for the simple reason that every teacher since grade school required it for their research papers.  When left to our discretion, and the teacher assigned a page minimum, we selected the staid, but larger Courier New font in a transparent effort to squeak past the page minimum and mask the lack of substance in our analysis.

As the old adage goes, "garbage in, garbage out."  Trained to remain indifferent to font selection, we carry that same apathy to our professional life.  This reality is a bit odd since, after all, the written word is perhaps the most important tool of our trade.  

Stepping into this void is the Seventh Circuit, which has published its own guidelines for briefing and other papers, which states thus:

Typographic decisions should be made for a purpose. The Times of London chose the typeface Times New Roman to serve an audience looking for a quick read. Lawyers don’t want their audience to read fast and throw the document away; they want to maximize retention. Achieving that goal requires a different approach—different typefaces, different column widths, different writing conventions. Briefs are like books rather than newspapers. The most important piece of advice we can offer is this: read some good books and try to make your briefs more like them.
….
Both the Supreme Court and the Solicitor General use Century. Professional typographers set books in New Baskerville, Book Antiqua, Calisto, Century, Century Schoolbook, Bookman Old Style and many other proportionally spaced serif faces. Any face with the word “book” in its name is likely to be good for legal work. Baskerville, Bembo, Caslon, Deepdene, Galliard, Jenson, Minion, Palatino, Pontifex, Stone Serif, Trump Mediäval, and Utopia are among other faces designed for use in books and thus suitable for brief-length presentations.

Briefs are the vehicles by which lawyers "sell" their ideas, and a poor style will undermine the validity of the arguments contained therein.  That is, a brief's style, or lack thereof, can impact the reader's impression in the same way a house's poor curb appeal can scare away potential buyers.  The interior - the furnishings, fixtures, appliances, molding, etc... - may be of the highest craftsmanship, but a dirt driveway, dated siding, and bare landscaping will give potential buyers the impression of cheapness and lack of care.

Lawyers should thus take note of the wisdom offered by Victor Hugo: Style is the substance of the subject called unceasingly to the surface.

Digging In Your Heels

Yesterday, Lyle Denniston at SCOTUSblog criticized a lawyer's performance in Johnson v. Williams, a case that raised the issue of when a federal court on habeas review must defer to a state court's ruling on a constitutional issue on the merits when the state court addresses the state questions, but remains silent on the federal constitutional issues.

The lawyer representing California urged the Court to adopt a categorical rule - that federal courts should presume a state court has addressed the federal issues, unless the state court explicitly states it will pass on the federal issues.  Justice Kennedy, however, noted that California could prevail on narrower grounds.  Since the state court relied on an earlier state case that had specifically addressed the federal constitutional claim petitioner was asserting, Justice Kennedy suggested that both the state and federal issues were linked.  This, Justice Kennedy reasoned, obviated the need to adopt the categorical rule urged by California.  Justice Ginsburg appeared to agree.  

The California lawyer agreed with Justice Kennedy, but quickly returned to pressing for the broader, categorical rule where she faced strong resistance from Justices Alito, Scalia and Kennedy.  Denniston criticized the lawyer's oral argument strategy.  His criticism is neatly captured by the headline "Pushing the envelope, needlessly."  

Meanwhile, Tom Goldstein found no harm in the California lawyer's decision to argue for the broader rule, even though several justices showed much skepticism toward its workability.  Since it was obvious that California would at least prevail on the narrower grounds, there was no harm for California to urge for a broader rule that would affect a number of other pending cases.  As Goldstein states, "the state had the chance of assembling a majority for its broader rule [and] it has a significant interest in many other cases in having a categorical rule that better insulates rulings of the state courts from federal habeas challenge." 

I would ordinarily agree with Denniston's criticisms.  In much less complex cases, far too many lawyers let their vanity take over and insist on pressing the argument they wrote rather than taking the lifeline offered by the Court.  But, in the context of this case, Goldstein's analysis is apt.  In contrast to a private party, the State of California, represented by the Attorney General, must think about considerations other than simply winning the case.  That is, in representing the public interest, the Attorney General must not only craft the most persuasive argument to win, but also the most convincing argument that will shape the law favorably for the other cases that remain in the pipeline.  Thus, the appellate practitioner representing the public interest must contemplate the broader impact of his/her argument strategy, and the lawyer here displayed a deep awareness of her role as a public interest advocate. 

Still, private practitioners should take note: vigorously press the main argument, but if the Court hints at an alternative, winning argument, just run with it.   

Making the Dry Come Alive

As I often say, litigators must first and foremost be a writer.  Not a legal writer, but a writer who can make the client's story come alive.  That sounds like sage advice, but hardly seems helpful when you are representing a client on matter involving incredibly dry issues of notice, statute of limitations and jurisdiction?

Making arcane legal issues come alive is no easy task, but here's one tip.  Think about why the result you want is the right and moral one.  Don't get bogged down in the legal minutiae.  Look at the big picture.  Did the plaintiff commence his lawsuit a day after the statute of limitations expired?  Then hold hold his feet to the fire.  Even if the facts and law are so clearly on your side, a rote "plaintiff has commenced the instant action in contravention of the five year statute of limitations" is unconvincing.  It gives the court room to second-guess itself and say "well, he filed the lawsuit late, true, but he was only a day late and suffered a bad injury so I'm sure an exception applies.  After all, who am I close the courthouse door?"

With the right facts, you can write:

Plaintiff fractured his hip as a result of a slip and fall when he walked across a patch of ice outside of the Kwik-E-Mart on January 1, 2007.  According to plaintiff's verified complaint, he underwent intensive surgery that required a week-long hospital stay and a two month outpatient physical therapy regimen.  As plaintiff further alleges, the accident caused him to miss three months of work at his construction job, all while allegedly suffering untold physical pain and suffering.  Though plaintiff remained well aware of the facts surrounding his injury, he never commenced a lawsuit.  Meanwhile, as the accident occurred at night when the Kwik-E-Mart was closed and its only two owner-employees were asleep, Kwik-E-Mart remained unaware over the past five years that a potential lawsuit exposing them to tens of thousands of dollars in liability and legal costs was waiting in the midst. 

"Yet, now, over five years since the accident, and in contravention of the statute of limitations, plaintiff has commenced this lawsuit at a time when potential witnesses have disappeared, memories faded, and evidence lost.  As this Court surely understands, the statute of limitations is designed to discourage plaintiffs from filing lawsuits at such a late juncture that the defendants are left unable to defend themselves.   Plaintiff's action is exactly of the type the statute of limitations is designed to discourage.  For the foregoing reasons, defendant requests that plaintiff's action be dismissed with prejudice."

Perhaps the above passage is overkill (and a bit embellished for dramatic effect), but you get the point.  It tarnishes the plaintiff's credibility while adding a little sympathy to your client.  Further, it provides an element of human drama: greedy plaintiff with second thoughts vs. small business facing the possibility of financial ruin.  Arguments such as these will compel the court to rule in your favor not simply because the law is on your side, but because justice requires the result.       

Overcoming the Appellant's Trap

In drafting a respondent's argument, the task, at first glance, is fairly simple: emphasize the stringent standard of review, refute each of appellant's contentions point by point, distinguish the cases relied upon, cite a few of your own, and conclude by requesting that the Court should affirm the judgment below. 

This represents the basic outline in drafting a respondent's brief, and will remain so as long as law schools are teaching the IRAC approach to constructing legal arguments. Blindly adhering to this format, however, will cause you to overlook some dispositive issues that could enhance the quality of your brief. 

Say that the appellant claims that the trial court improperly admitted gruesome photographs into evidence. One would hope that the appellant's attorney would confront the harmless error issue head on, but we all know that the best practices of the profession are not borne out by reality. When faced with a choice of confronting a counterargument - here, overwhelming evidence establishing defendant's guilt or liability - or simply ignoring the issue, the typical attorney will all too often opt for the latter, hoping that opposing counsel will fail to spot it. If you are bent on merely responding the narrow question - constructed by appellant no less - of whether the photographs were unduly prejudicial, you have conceded the  field of battle to your adversary's turf. 

This highlights the importance of establishing your affirmative case. As respondent's counsel, free yourself from the intricacies of appellant's argument and ask the simple question of why fairness and justice dictates a result in your favor.  Reformulating the question in this manner will compel you to examine all the evidence from a fresh and holistic perspective. In turn, you will uncover new avenues for research that will greatly improve your theory of the case. 

The Itchy Trigger Finger Effect

Litigators are essentially professional wordsmiths.  Yes, litigators must excel at logical reasoning, but the litigator cannot rest upon finding the legally correct "if A, then B" proposition.  At this point, the litigator must become a writer and vividly tell the story of his client.  Diction, syntax, sentence structure and length - even rhetorical devices depending on the nature of the case - are but a few of the literary devices the litigator must employ to persuade the court to adopt his claim.

This is why legal writing is an arduous task, requiring, as it does, days, if not weeks, of writing, telling, and just plain thinking during all times of the day about the client's story.  So many hours are spent drafting, editing, and re-editing the brief, and then preparing for oral argument, that the litigator altogether dispenses with another equally vital of the trade: sound wisdom and judgment. 

A brief war story will illustrate the point.  While waiting for my case to be called - inevitably placed at the bottom of a long calendar - I observed a number of attorneys argue their cases.  The arguments were all fairly routine except for this one argument in the middle of the session.   Here, appellant's counsel opened with her argument and was met with an acerbic judge who bluntly explained, "Counsel, having a passing familiarity with the facts and procedural history of this case, I must say that your argument borders on frivolous."  Emboldened, a fellow judge chimed in as well: "Counsel, it's not just that your argument is meritless.  The problem is that your argument appears to be made up out of whole cloth."  From the appellant's perspective, the argument was an unmitigated disaster, and it was clear to everyone sitting in the courtroom that the court would unanimously affirm the judgment below. 

That is, everyone except for respondent's counsel, who delivered a point by point refutation of his adversary's argument, apparently believing that the court actually needed further convincing of the utter lack of merit in his adversary's argument.   This prompted a judge to immediately interrupt: "So counsel, do you wish to snatch defeat from the jaws of victory?"  Laughter ensued.

I call this the "itchy trigger finger" effect.  So much time is spent fortifying defenses to the weakest aspects of the argument that the lawyer appears at oral argument narrowly focused on firmly executing the battle plan.  But, as is often said, "discretion is the better part of valor," and sometimes a succinct statement such as "It appears that the court is very familiar with the facts and law so if there are no questions, I will rest of my brief" is all the lawyer needs to put the final coup de grace to your adversary's case.         

Write to Persuade, Write to Entertain

        As many readers likely heard, last year the renowned legal writing expert Brian Garner published the 180 page transcript of his interviews with all nine Supreme Court justices in the legal writing journal Scribes.  In a nuthsell, Mr. Garner's interviews explore various aspects about appellate advocacy that every lawyer should know before representing a client before the Court, or before any other appellate tribunal for that matter.  The justice's complaints are at once familiar - Justice Ginsburg: Lawyers somehow can’t give up the extra space so they fill the brief unnecessarily, not realizing that eye fatigue and even annoyance will be the response they get for writing an overlong brief - and at times reflect a common-sense, practical approach to brief writing that is both refreshing, and, well, surprising to hear from those who inhabit the seemingly rarefied, cloistered world of the Supreme Court.  Even a judge adjudicating the smallest controversies can appreciate Justice Roberts' statement that "[the facts must relate] a good story. Every lawsuit is a story. I don’t care if it’s about a dry contract interpretation; you’ve got two people who want to accomplish something, and they’re coming together — that’s a story. And you’ve got to tell a good story. Believe it or not, no matter how dry it is, something’s going on that got you to this point, and you want it to be a little bit of a page-turner, to have some sense of drama, some building up to the legal arguments."

        Just as the paperback fiction writer is writing to entertain the casual beach reader, the legal writer is writing to persuade a judge or a group of judges to reach a particular result.  In other words, every writer has an audience, and, here, some of the most learned judges who bear witness to some of the most impressive advocacy lament that, even today, they read far too many briefs that are heavy on long, turgid expositions of the law and light on brevity and human drama.  Read the transcripts.  Digest your audience's lessons.