Wednesday, October 24, 2012

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. 

Tuesday, October 23, 2012

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.  

Monday, October 22, 2012

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.         

Thursday, October 18, 2012

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.  

Wednesday, October 17, 2012

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.

Monday, October 15, 2012

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.

Thursday, October 11, 2012

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.    

Wednesday, October 10, 2012

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

Tuesday, October 9, 2012

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.  

Monday, October 8, 2012

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 MediƤval, 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.

Friday, October 5, 2012

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.   

Thursday, October 4, 2012

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.       

Wednesday, October 3, 2012

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. 

Tuesday, October 2, 2012

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.