Thursday, January 3, 2013

Show, Don't Tell

Readers of this blog know I have more than a few pet peeves about the way many attorneys draft appellate briefs and respond to questions at oral argument.  High up on this list of (growing) transgressions is when lawyers argue in the factual summary of their brief.  Time and again I will read a brief containing a few lines of descriptive facts:  On July 4, 2011, plaintiff, while walking on a sidewalk owned and maintained by defendants, slipped and fell when she walked across a patch of ice," followed up by the useless legal argument,"this uncontroverted fact clearly establishes liability on the part of defendant."  

Another variation of this poor briefing habit is the use of characterizations and conclusions in the factual summary, to wit, "the prosecution's sole eyewitness did not obtain a clear view of the defendant's face when he allegedly shot and killed the victim, or "the police did not have permission to enter the defendant's apartment."  These very same arguments will again appear in the argument section.  The result is unsurprising: a repetitive brief larded up with a series of legal conclusions.    

Factual persuasion is perhaps the most difficult task to learn for the novice appellate practitioner.  I have pondered many theories for why this is the case, but I think it boils down to the fact that many newbie litigators - and people in general for that matter - are hard wired to argue and complain, from their earliest days ("Why is my curfew so early? You always treat me like a child;" or "It's not fair that Joey is starting.  All he does is suck up to the coach").  Thus, it feels more natural to tell, without actually explaining in careful detail, why the court below reached an unfair and erroneous result.  

Far more difficult, however, is the reverse: to show without telling.  Yet, this is the essence of storytelling.  As the author Anton Chekov once said, "don't tell me the moon is shining; show me the glint of light on broken glass."  Following his advice, don't tell the court that the prosecution's main eyewitness failed to get a good view of the defendant's face.  That only insults the court by robbing it of the ability to draw an inference, however inescapable that inference may be.  Show the court precisely where the eyewitness was standing and how far away he was standing from the perpetrator, the time of day, the length of time he saw the defendant, the clothing obstructing the defendant's face, the number of other visual distractions present in the area, etc...

Many appeals do not raise novel issues of law.  Whether an appeal is successful will boil down to whether the advocate has portrayed the facts in the most favorable light possible.  This being the reality, every lawyer should aim to persuade the court to reach the desired result before turning to the argument section.

Let that be every practitioner's New Year's Resolution.      

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