Well Said

Hat Tip to Kevin's Corner. 

In Praise of Judge Kozinski

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. 

Using Cases as Illustrations

"[T]he fact is that in his brief, the lawyer seems oppressed with the feeling that his reasoning must be the servant of his authorities, with the result that his argument often becomes heavy from forced subordination, when it might be lightened by using the cases merely to illustrate, like pictures in a book." - Howard C. Westwood

Appellate advocacy is not merely a contest of "I cited the most relevant cases; therefore, I win."   Let the case law take a back seat to the argument.  String cites - especially for indisputable propositions like the standard for summary judgment - are not a substitute for thoughtful legal analysis.  Larding up the brief with authorities convey the impression that the lawyer has nothing original to say, thereby rendering him unable to assist the court in deciding the case.  Write a story; not a treatise.  

The Appellant as Presidential Challenger

The conventional wisdom of the 2012 presidential race is that Governor Romney must give undecided voters a legitimate excuse to vote against President Obama, who remains personally likable among independents, despite their widely held belief that he has failed to failed to fulfill the promises he made upon entering office.  According to this popular notion, Romney can't take an overly aggressive stance against the president, lest he turn off the independents he desperately needs to secure victory.  Though many in Governor Romney's own party are hardly shy in expressing their distaste of President Obama's policies, pundits argue that Governor Romney must offer a more delicate touch, and campaign on a theme  of promises broken and goals unachieved. 

This is not to say that Governor Romney has never veered from this theme.  Indeed, one could argue that Romney's confrontational style in both debates undermined the general tone of his campaign.  The point is, rather, that Governor Romney has had to walk a fine line in vigorously pressing his case against President Obama without letting it degenerate into a full frontal ad hominem attack against the president himself. 

 

In appellate advocacy, the appellant, placed in the difficult position of arguing that the lower court committed error, must walk the same fine line.  He must vigorously advocate for his client, but, in doing so, can easily allow emotions take over and let the argument's tone deteriorate into of anger and self-righteousness.  This danger is especially pronounced when the losing trial lawyer drafts the appellate brief.  Having expended a tremendous amount of time and energy litigating the case below, the attorney may unintentionally use the brief-writing experience as a cathartic exercise and spill his bottled-up frustration onto paper.  But, this works to the client's detriment.  After all, many appellate judges served as trial judges; absent a crystal clear record, they are loath to accept the notion that their counterparts below acted in bad faith.

 

This, however, does not mean that appellate court judges don't believe that their counterparts below make mistakes.  Reformulate "the trial court flagrantly ignored dispositive precedent" to "the trial court overlooked binding case law" or "unfortunately, the lower court did not consider."  Like the independent voter, the appellate judge needs a reasonable excuse to reverse.  Building an argument based on a theme of disappointment and regret, and not one of bitterness and acrimony, will do just that.         

On the Knife's Edge

A common perception held among trial attorneys is that the die has been cast by the time the case arises on appeal.  Neither party can introduce new facts into the record.  Nor can they raise new claims not raised below.  Combined with the usual deference the appellate court must afford to a trial court's ruling, some attorneys fall into an "it is what it is" approach to litigating the appeal.   

This fatalistic view is not without support since the vast majority of appeals result in a unanimous affirmance.  Indeed, for the appellate attorney who frequently represents the appellant, merely obtaining a favorable lone dissent can feel like a victory.   

So, yes, litigating an appeal can sometimes feel like a rote process.

Except when it's not.

Take, for example, the recently decided case of People v. Aveni.  In Aveni, 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.

(emphasis added).  Subtle indeed.  Aveni highlights and validates the appellate specialist's work.  Oftentimes, the appellate attorney is called upon to carve out fine distinctions in the hopes of winning the appeal.  To this end, the attorney logs countless hours polishing, editing, and massaging the distinction.   And many times the nuanced argument falls on deaf ears.

Except when it doesn't.

Persuasive appellate counsel can make a difference.  

Taking Cue from the Judiciary

Trial and appellate judges alike frequently lament the poor quality of legal writing contained in briefs and memoranda of law.  I too share these concerns, as evidenced by the various posts in this blog itself.  However, it's hard for anyone to take the judiciary's complaints seriously when it publishes the following:

In an action to recover damages for breach of contract, the defendant appeals, as limited by its brief, from so much of (1) an order of the [lower court], dated March 31, 2011, as, upon reargument, in effect, vacated the determination in an order of the same court dated November 10, 2010, denying the plaintiff's cross motion, in effect, to vacate the dismissal of the action pursuant to CPLR 3216, for leave to intervene in the action, substitute himself as the plaintiff in the place of Amer-A-Med Health Products, Inc., as assignee of Heather Goldberg, Annette Guerro, and Sarah Johnson, amend the caption accordingly, and serve a second amended complaint, and for an extension of time to file a note of issue, and thereupon granted the cross motion, and (2) an order of the same court dated July 19, 2011, as denied that branch of its motion which was to dismiss the class action allegations set forth in the second amended complaint, sua sponte certified the class, and, upon reargument, adhered to the determination in the order dated March 31, 2011. 

Crystal clear, right?  Now, in all likelihood, a judge did not pen the above description, but rather an overworked and stressed court attorney who decided to use a convenient template.  Still, courts should move away from this form of sloppy writing (I can pull many other  similar examples from this court's decision list and others).  Though the decision is nearly incomprehensible,  it will enter the official reports unedited, thereby conveying the impression to the general public - and specifically attorneys - that it deems this sort of careless writing quality prose.

Simply chopping up this record long run-on sentence into several shorter ones (i.e., "Plaintiff commenced an action against defendant for breach of contract.  Defendant appealed the denial of its motion to dismiss, claiming....") would go a long way toward reinforcing the judiciary's criticisms.

In Defense of Formality

I have always admired Supreme Court litigator Tom Goldstein, mainly because of his success story. Lacking the requisite clerkship and Ivy League credentials to gain entry into the Supreme Court bar, Goldstein decided he would make it on his own.  His approach was unorthodox for the time: he would scour the federal reports for circuit splits and contact the parties directly to solicit their business.  Goldstein's hustle paid off: he founded his own firm, was elected to the partnership at Akin Gump where he co-headed the firm's Supreme Court practice during which time he founded the highly influential SCOTUSBlog.  

As a result, Mr. Goldstein has enjoyed the privilege of arguing on over two dozen occasions before the Court.  Because of the frequency with which he has appeared, he has had the luxury to act a little more at ease at the dais than, say, an advocate making his first appearance.  

Mr. Goldstein's latest argument in Moncrieffe v. Holder, however, highlights the danger of being just a bit too relaxed at oral argument.  As described by SCOTUSBlog writer Lyle Denniston, "[Mr. Goldstein] has a habit, sometimes disarming to the Justices, of being a little bit too familiar, and a little too fast with a quip."  According to Mr. Denniston, Mr. Goldstein deployed a boxing analogy - since the case preceded the more widely publicized of Fischer v. University of Texas, he called his case "today's undercard" - that fell flat at the bench. 

To be fair, Goldstein simply told a bad joke to open his presentation.  A sin, but hardly cringeworthy.  For an example of the latter,  I witnessed one argument wherein lawyer representing a co-op owner in a dispute with the board directly attemptws to elicit the judge's sympathy by saying, in effect, "Justice So and So, you live in a co-op so you know all too well the hurdles this board made my client jump through."  A well-known litigator from a highly regarded New York firm took a similar approach in another case: "Your Honor, you once served as counsel to the governor so you must be very familiar with the difficulties inherent in crafting crystal clear statutory language."  A few judges exchanged knowing glances while the lawyers in the gallery shifted uncomfortably in their seats. 

The takeaway is this: never veer from the formal environment that dominates an appellate oral argument, and always stick to the record and issues at hand.  Even if the justices roared with laughter at Mr. Goldstein's joke, it would not have done little, if anything, to advance his argument.  Meanwhile, the lawyers above who expressed an almost feigned familiarity with the judges on the panel came across as fake.  Rarely has an advocate lost credibility by taking too formal approach to presenting his case.  Stick to the basics and let your mastery of the record and issues build your credibility.