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.