Monday, July 9, 2012

Forms: The Appellate Advocate's Temptation

“Ideas are like rabbits. You get a couple and learn how to handle them, and pretty soon you have a dozen.”
John Steinbeck

As a young attorney who was often overburdened with motions and briefs that had piled up on my desk, I loved forms. "One of my colleagues had responded to this argument," I thought.  "I'll just send out my standard email to my colleagues: Has anyone responded to the claim that....?"  Minutes later, and to my delight, I would receive several sample responses, taking pride in the fact that I slashed countless hours of research and original writing into a mere one to two hour writing project.  During very busy times, the routine even became familiar.  Copy.  Paste.  Edit.  File and serve.  Repeat.

For those appellate practitioners who practice in areas that have a high volume of recurring issues, you probably caved into the same temptation as well, copying and pasting like a robot all in service of the cliche "There's no sense in reinventing the wheel."  I regret to report, however, that he sample memorandum of law or brief your colleague wrote is not a substitute for original thought.  Whether you are a main street personal injury attorney or big firm litigator extraordinaire, you did not sink yourself into six figure debt so you could perform the mindless - and unfulfilling - task of shuffling paper around a desk.  You are a lawyer.  Stated differently, someone is paying you - and paying a premium - for you to think critically.

Take a moment before you click "send" for that sample response.  Read the brief and read it slowly.  Digest the facts and issues.  Understand the nuances to determine whether they are of any legal significance.  As a mentor once explained, "legal analysis is like peeling an onion.  You must sift through the layers in order to fully analyze the issue."  So, peel the onion and examine the many dimensions to the issue at hand.  You may find that an issue you thought was simple and settled is, in actuality, novel and highly complex.  Indeed, the response your colleague drafted may be wholly inadequate as a response to your adversary's claim.  You will then have no choice but to craft a sophisticated, original argument.  In other words, you will have no choice but to think and write like a lawyer.         

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