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.