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

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.  

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 Mediäval, 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.

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.   

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.       

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. 

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.