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.