Catching up on reading. If you missed it too, here is Judge Posner in the American Bar Association's Litigation News on writing an effective appellate brief.
Peggy Lee Hall claimed she was injured when she slipped on ice in a parking lot owned by Naper Gold Hospitality LLC. She sued Naper, but the company got summary judgment because Hall did not show facts that there had been an unnatural accumulation of ice.
Hall appealed Naper’s summary judgment. But the Second District Illinois Appellate Court dismissed the appeal “because of the flagrant and, frankly, appalling violations of supreme court rules committed by plaintiff’s [Hall] attorney … and his law firm … in the handling of this appeal.”
These were Hall’s violations:
• Hall’s statement of jurisdiction had “nothing whatsoever to do with the instant appeal.”
• The original statement of facts had been pasted into Hall’s brief from an appeal in a different case. And when Hall’s lawyer amended the statement of facts, he (1) filed it without asking for permission to do so, and (2) what he did file “barely acquaint[ed] this court with the procedural history of the case or the issues involved.”
• Illinois Supreme Court “Rule 341(h)(3) requires appellant [in this case, Hall] to include a ‘concise statement of the applicable standard of review for each issue. with citation to authority.’ … Plaintiff’s brief violates this rule in that nowhere is a standard of review set forth.”
• These violations “came on top of plaintiff’s filing of a noncompliant appendix.” The appellate court twice ordered Hall’s lawyer to file the appendix, the second time under threat of dismissal of the appeal.
• Hall’s legal argument contained insufficient citation to supporting authority.
The appellate court acknowledged the harshness of its ruling, “but where the jurisdictional statement and the statement of facts do not even pertain to the case on appeal but were copied wholesale from an unrelated brief, where the brief contains no standards of review, and where, most important, plaintiff’s arguments are conclusory and not supported by any authority, we have no choice but to strike the brief and dismiss the appeal.”
Read the whole case, Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, by clicking here.
These two tips are from Ross Guberman, the president of Legal Writing Pro and the author of Point Made: How to Write Like the Nation's Top Advocates. Ross also is an Appellatology panelist. His short bio is here.
These Two Tips, with examples, are drawn from the brief for the states signed by Paul Clement in the “Obamacare” case.
Use more enumerated lists, and not just in your introductions and preliminary statements. For example:
The federal government attempts to sidestep the tax power problem it would create by insisting that the Court has “abandoned the view that bright-line distinctions exist between regulatory and revenue-raising taxes." … But that is doubly irrelevant. First, there is no analogous doctrine under which Congress treats penalties as taxes . . .
To add speed to your writing and to project confidence, change every "however," "nonetheless," or "nevertheless" to "but" or "yet.” For example:
The modern commerce power is a broad one, as there is little left of the "distinction between what is truly national and what is truly local" under the Court’s present-day notions of "commerce." … But even as the Court has expanded its conception of "commerce," it has not wavered from the notion that the power to "regulate" is the power to prescribe rules for commerce, and it has never suggested that power includes the power to compel the existence of commerce in the first place.
Ross put 140 comments on the Solicitor General's "Obamacare" brief. They’re all right here.
Always thinking about you and devising unique reading and viewing experiences for our audience, Illinois Appellate Lawyer Blog announces a new series:
♪♪♪ Two Tips ♪♪♪
Two Tips, offered by legal writing and strategy experts, will suggest ways you can improve your brief writing. The tips will be in various formats – written, podcast, video, extra sensory perception, Vulcan mind meld.
Two Tips will appear at random times according to a strict schedule. If you have two tips that might interest Illinois Appellate Lawyer Blog readers and viewers, shoot me an email and we’ll make arrangements for you to appear, or write, or sing, or however you want to transmit the information.
We start now.
These two tips are from Ken Abraham. Ken has been practicing law since 1970. He was an associate judge in DuPage County, Illinois for 15 years. Ken is in private practice now and is a mock judge on the Appellatology panel. You can see a fuller bio for Ken here.
Carefully review the trial court’s ruling, whether oral or written. Some judges say things just to placate the unsuccessful party. Others comment for the sake of appellate review to try to establish that they have considered all the law and evidence. Often a misstep is made.
One example is reciting the wrong burden of proof, or using words like “it is clear,” thus suggesting (unintentionally) that the judge employed a clear-and-convincing standard when it’s not applicable.
Pay close attention to what the trial judge does not state. Sometimes a key point goes unmentioned. Early in my judicial career I wrote an opinion in a divorce case. After affirming on all other grounds, the appellate court stated it was not sure if I had considered the benefit to the husband of the use of the use of a business vehicle.
In fact I had considered it, but I did not mention it is my ruling. The appellate court adjusted the final numbers. I’m certain that change would not have been made had I been more thorough in my written opinion.
Remember the old saying: Trial courts look for justice. Appellate courts look for error.
Guilty as charged. We’re obsessed with good writing and engrossed by lucid argument. Superior writing plus absorbing argument gives us the Ahhhhh of the first cup of morning coffee.
Appellatology is great legal thinkers and writers devoted to helping lawyers write better briefs.
How do we do it? Our panel of mock judges ― senior lawyers, scholars, retired judges, and legal writing experts ― analyzes your draft and confers with you and other mock judges, and tells you how to improve it. We answer your questions, discuss your issues, and give you our independent evaluations. And it’s all done online without the hassle, cost, and expense of leaving your office.
Why should you do it? Because most appeals are decided on the briefs, before you ever set foot in the courtroom. So your brief has to make your case. If your case is worth appealing, or defending on appeal, you should know whether your brief does the job it must ― before you file it.
Click here to learn more about Appellatology and how to improve your chances on appeal.
We continue with Part 2 of author and legal-writing expert Ross Guberman’s insights into drafting appellate briefs. In case you missed it, here’s Part 1. And here is a link to my review of Ross’s book, Point Made: How to Write Like the Nation’s Top Advocates.
What is the role of case law precedent in a well-written appellate brief?
Judge Posner suggests in his book How Judges Think that most litigators overestimate the importance of case law and underestimate the pragmatic advantage of making the court feel like it is doing the right thing, or at least that following the case law makes sense.
But even when the case law is paramount, computers are our worst enemy, for they encourage us to regurgitate too many facts and to copy too much from the holdings.
If you study the work of the top appellate advocates, you’ll notice that they, unlike most of us, rarely write things like “Such-and-such case is directly on point. In such-and-such case, so-and-so was born thirty years ago.” Instead, you’ll find swift and clean links between the case cited and the current case. And those links are at the beginning of the discussion, not buried at the end.
Are some styles better than others for a brief – formal, casual, some mix, something else?
I think a lot of people confuse “serious” with “formal.” The Economist is a serious and influential publication that many people love to read, but I would not call the writing “formal.”
The same goes for briefs. Very few briefs are too casual. In fact, I wish lawyers were as afraid of being boring as they are afraid of being too casual. And remember that showing personality and flair does not make writing “casual.”
The very best brief writers mix styles and diction, sometimes even in one sentence. Here’s an example from Maureen Mahoney’s brief seeking to reverse the Arthur Andersen conviction: “A transitive reading of ‘corruptly’ avoid this interpretive train wreck entirely.” And here’s another example from patent-litigation guru Morgan Chu: “[T]he parties’ contract provides a definition that is closely related to the sweet spot of Tessera’s patent portfolio.”
Is there a difference between writing that will be read as a paper copy of a brief, or on a computer screen?
I know there have some recent stories about judges and justices reading briefs on Kindles and the like. These revelations are treated as sexy stuff in the advocacy world, but frankly I’m not sure whether any of it matters. If the reading device matters at all, it would simply be because when judges read on a screen, you have an even greater burden to make the prose accessible and appealing to the eye.
The great citation debate. Better to put them in the text or in footnotes?
I personally love the look of briefs with citations in the footnotes, and I appreciate Bryan Garner’s efforts in this regard. But the truth is, most judges still want the citations where they’ve long been—in the text—and most judges put citations there in their own opinions. As a compromise, avoid starting sentences with a full citation and avoid embedding citations in the middle of sentences either. Better to make your citation a separate sentence that doesn’t interrupt the flow.
Does typography matter? What are the two or three points most important for lawyers to keep in mind?
Let’s be honest: it’s more fun to talk about fonts than to talk about the best way to organize your argument sections. But the latter surely matters far more.
I do have some advice on fonts and spacing in my own book, and if your readers particularly interested in typography, I recommend the authoritative Typography for Lawyers by my friend Matthew Butterick.
Probably the most important point is to avoid Courier as your font!
How does Point Made help the appellate practitioner?
I’ve had the privilege of meeting a lot of appellate practitioners who attend my workshops and seminars around the country. Most sense that writers like, say, Chief Justice John Roberts, are doing “something” in their prose and analysis that other advocates just don’t do. My job in Point Made is to turn that “something” into 50 concrete techniques illustrated with hundreds of bite-sized examples from many top lawyers and many famous cases.
Some people have written or called me to say that the book has helped them with their oral advocacy as well, though that was not my intention and I don’t purport to be an expert on oral argument.
I know people love to say that appellate advocacy is an art, but even if that’s true, I’ve tried to reveal some of the craft behind that art. And so far, I’ve been grateful to hear that lawyers at all levels, from the most prominent Supreme Court advocates to newly minted law school graduates, have found the examples helpful, and even inspiring.
Ross Guberman is the author of Point Made: How to Write Like the Nation’s Top Advocates. Go here to read illinoisappellatelawyerblog’s review of Ross’s book. We liked it so much, illinoisappellatelawyerblog asked Ross to answer a few questions about appellate brief writing. Here is Part 1 of that Q&A.
Is brief writing important? If the court will do what it wants anyway, then why does it even matter what the lawyer says in the brief or how he or she says it?
I know there’s been some recent research suggesting that some appellate decisions fall on party lines (in employment-discrimination cases, for example, judges appointed by Democrats are more likely to side with employees than Republican judges are). But most cases are neither political nor ideological, and even in the ones that are, judges look to the briefs for guidance.
“In about 80 percent of all appeals, I reach a firm inclination just from reading the briefs,” said former Federal Circuit Chief Judge Paul Michel.
So yes, what the lawyer says matters very much. But what about the other part of your question? Does “how” we make those points matter? Perhaps the style or the presentation shouldn’t matter, but judges and clerks are only human after all. The easier and more engaging the read, the likelier they are to grasp the substance.
[Editor’s Note: The American Bar Association ran an article this week about U.S. Supreme Court Justice Alito’s public comment about the importance of the briefing process. Paraphrasing Alito, the ABA Journal wrote: “[O]ral arguments aren’t all that important, despite a popular belief to the contrary. Instead, he [Alito] asserted, what’s important are the briefs and the preparation.”]
What are the worst mistakes you see lawyers make in appellate briefs? What should lawyers never do or write in their appellate briefs?
Rather than talk about the really bad briefs or the truly unethical or sloppy lawyers, let’s talk about decent briefs from hard-working lawyers that could have been a lot better. Such “so-so” briefs have four main features:
• First, the lawyers spend too much time and too many words saying how wrong the trial court was or how erroneous or misguided their opponents’ positions are.
• Second, the lawyers fail to identify up front what former Third Circuit Chief Judge Ruggero Aldisert calls the “flashpoint of controversy”—the boiled-down version of the parties’ competing views on the law.
• Third, when cases are cited, the approach is like that of a news anchor: “this happened, that happened, and then the court said this about what happened.”
• Fourth, the style has a piled-on feel; the sentences and paragraphs just meander to and fro, with no real linear progression. Lots of sentences begin with “moreover” or “furthermore,” just so the lawyer has an excuse to write something else.
So what are the main characteristics of a good appellate brief?
OK, here are four! I’ll avoid the obvious ones like “be organized” or “have a good issue statement.”
• First, the lawyer sounds more like a passionate professor than an angry or indignant hired gun. You sound like you simply want to help the panel get the law right.
• Second, the lawyer uses the cases as a means to an end, not as an end in themselves. That means that you integrate the case law into your argument rather than the other way around.
• Third, the sentences have varied styles and lengths and structures. Many sentences include the word “although” or the phrase “even though”; they concede something about the other side’s position (or the trial court’s decision) but then explain why that concession shouldn’t carry the day.
• Fourth, the lawyer sprinkles in many fresh analogies, examples, figures of speech, and comparisons to bring the points alive.
Can you identify the elements of a good Fact section? In addition to the obvious – i.e., an adequate description of the facts – what should a good fact section accomplish?
The most important principle is “Show, Not Tell.” You need to purge your fact section of most adverbs, and also cut all phrases like “which illustrates” or “which reflects.” The facts must speak for themselves.
It’s also helpful to cut a lot of the dates altogether, or at least to replace them with phrases like “two days later.” Excessive dates are among the things that annoy judges most.
Use headings and subheadings liberally, and don’t be afraid to be a little creative or to write the headings in the present tense.
Also consider starting with an umbrella or overview passage that sets the stage, explains who the parties are, and previews what sort of story the court is about to read.
Can you identify the elements of a good argument section?
Let me share the best test of all, and one that only the nation’s very best appellate advocates pass. In each section, most or all of your paragraphs should begin with a reason the heading is true, and no paragraphs should begin with neutral observations on the dispute, the facts, or the case law.
The other key element is to invoke the sense of a dialogue, not a monologue. In other words, you really have to engage the counterarguments and tackle them head-on. Making everything sound one-sided and overly simple will ultimately backfire.
Part 2 of Ross Guberman on appellate brief writing to follow soon.
Here is a letter to the editor I submitted to Illinois State Bar Journal with my observations about an article in the April 2011 edition that disapproves of the declining number of appellate oral arguments.
To the Editor:
“Surviving the Death of Oral Argument” (sorry, subscription required) is misnamed. The article doesn’t contain ideas for how lawyers should proceed in their appellate practice in view of an established trend by courts to dispense with oral argument. Instead, the article bemoans the reality of fewer oral arguments, and criticizes the trend because, the author states, without a public oral argument judges may not be fully engaged.
We like to and should hold our judges to high standards. But at bottom, judges are paid public servants, elected to office by the same system we use to elect all politicians to other public offices. Taxpayers compensate judges to decide cases, conduct trials, and settle disputes. An unengaged appellate judge, irrespective of whether there is oral argument, shortchanges the public, especially the parties to a given dispute.
The appellate process should include oral argument when a judge wants the insights of counsel beyond what is contained in the briefs. But we shouldn’t have to entice judges to prepare for the decision-making process by conducting expensive proceedings that do not affect the outcome of the case.
Someone has to pay for “the public nature” of oral argument. When the government argues, taxpayers foot the bill. When a privately engaged lawyer argues, a client pays. Even in an uncomplicated case, those costs easily are thousands of dollars. Taxpayers and clients legitimately should question those expenses, especially when judges tell you that 85 to 95 percent of appeals are decided before a lawyer ever steps into the courtroom for oral argument, and irrespective of what the lawyer says. Tempting judges to become engaged — i.e., to do their jobs — does not justify the added costs to taxpayers and litigants to use our dispute resolution system.
So how does the appellate practitioner survive the death or oral argument? Write more readable and persuasive briefs. (Full disclosure here: My firm runs a service called AppellatologySM, an internet-based appellate brief conferencing service designed to help appellate lawyers write better briefs.) How you do that is a lengthy subject for another day. But goal number one has to be: Make sure your brief addresses all of the factual and legal questions a judge wants to know in order to rule in your favor. With fewer oral arguments, your brief may be your last and best hope.
Appellatology Launches From SRMPC Unashamed-Toot-Your-Horn-Marketing Department; Mock Appellate Judges Wanted
Appellate lawyers are belt-and–suspenders types. We read the rules; then re-read the rules; then just to be sure, read them again. We check our cites; re-check our cites; then just to be sure, check them again.
We agonize over the legal briefs we write. And for good reason: more than 90 percent of appeals are decided on the briefs. We think our facts tell the story our judges need and want to read. We think our issues and arguments leave no room for doubt.
If there were a way to know if your brief does what you think it does, would you take it? Would your client want you to? If there were a way to know if your brief addresses the facts and the law appellate judges expect, would you take it? Would your client want you to?
Appellatology offers the way. We let you ask them. And you do it from the comfort of your office (or anywhere else you have a web connection).
Using the latest in web conferencing software, Appellatology puts together a mock panel of retired judges, senior lawyers, and academics to conference your brief, just like your appellate panel will. Only this time, you’ll hear it all before you file your brief.
We’ve stripped the process of unnecessary overhead expense. We’ve set it up so you can ask questions during the session. And everything will be recorded for your easy access, so you and your colleagues and your client can see and hear the session anytime.
What better way to tighten your belt and suspenders?
Learn more by clicking on the Appellatology button at the top of this page, or right here if you prefer. Rather talk to someone? Call me at the Steven R Merican PC Unashamed-Toot-Your-Horn-Marketing Department, 630-579-6460.
More Mock Appellate Judges Wanted
• Do you like reading the law?
• Do you have superior powers of analysis?
• Do you know good writing?
• Can you communicate your ideas and are you willing to speak your mind?
Then maybe you should be an Appellatology panel member.
Appellatology is building its mock appellate judge panel, and needs retired judges (trial or appellate), senior lawyers, and academics to fill the bill.
Why should you do it?
• Good pay.
• No travel.
• Geography not an issue because we do everything over the internet. (And you don’t need new software.)
• Enjoy the excitement of being part of a new service and working with other bright and terrific people.
• And it’s fun.
Call (630-579-6460) or email me (firstname.lastname@example.org) if you’re interested. I’ll be happy to tell you more.
Here’s another issue lawyers often ask me to address: Must an appellate court consider the merits of an appeal when the appellee does not file a response brief? Does the appellant win for lack of opposition?
The Fourth District Illinois Appellate Court answered the question in Thomas v. Koe, Nos. 4-08-0705, 4-08-0884 (9/21/09), available here.
… [T]he supreme court set forth three distinct, discretionary options a reviewing court may exercise in the absence of an appellee's brief: (1) it may serve as an advocate for the appellee and decide the case when the court determines justice so requires, (2) it may decide the merits of the case if the record is simple and the issues can be easily decided without the aid of the appellee's brief, or (3) it may reverse the trial court when the appellant's brief demonstrates prima facie reversible error that is supported by the record …
An appellee — at least one with the resources to do so — has to be pretty nervy to decide not to file a response brief. Why would you consciously decide not to file a response? I see only two legitimate reasons: (1) you can’t afford it or (2) the appellant’s positions are so lacking in merit that a response is not necessary.
Don’t delude yourself with respect to the latter. We’ve all seen dead-bang-winners turn into something else. The conceit that comes with winning in the court below can be dangerous.
Illinois 4th District Appellate Court Refuses 30-Year “Legitimate Business Interest” Test As Made Of Whole Cloth
Neil Ehlers worked as a salesman for Sunbelt Rentals, a seller and renter of industrial equipment. After about five years, Ehlers left Sunbelt and went to work for Midwest Aerials & Equipment, a company that competed with Sunbelt. Sunbelt sued Ehlers and Midwest to enforce restrictive covenants in Sunbelt’s employment agreement with Ehlers. Sunbelt got a preliminary injunction against Ehlers and Midwest, who then appealed.
One of the issues on appeal was whether the trial court properly followed the “legitimate business interest” test when it analyzed the propriety of the restrictive covenants. That test had been used by Illinois appellate courts for more than 30 years.
But the Fourth District Illinois Appellate Court ruled that it didn’t matter because the “legitimate business interest” test had been “spun out of whole cloth” and never had been adopted by the Illinois Supreme Court. The appellate court ruled it was not constrained to abide a standard set by other state appellate courts despite 30 years of acceptance and use. Here’s the court’s rationale:
[E]ven assuming that Ehlers and Midwest are correct that the trial court was bound by appellate court precedent to apply the "legitimate-business-interest" test and failed to do so, we decline to reach the merits of their argument because, unlike the trial court, this court is not required to follow the decisions of its sister districts or, for that matter, our own prior decisions … ("[T]he opinion of one district, division, or panel of the appellate court is not binding on other districts, divisions, or panels".) Thus, having repudiated the validity of the "legitimate-business-interest" test earlier in this decision--assuming it was ever valid--we need not address the argument of Ehlers and Midwest that the trial court was bound by precedent to apply it in this case. Any error by the trial court in this regard simply no longer matters at this stage of proceedings.
This opinion is important to appellate practitioners as a reminder not to take the “long-established black letter law” for granted. Maybe it’s not so established. In this case, the appellate court referred to the “legitimate business interest” test as “nothing more than a judicial gloss incorrectly applied to this area of law by [other] … appellate courts.”
In the end, the appellate court affirmed the preliminary injunction. Read the whole case, Sunbelt Rentals v. Ehlers, No. 4-09-0290 (9/23/09), by clicking here.
For a statistical comparison among the federal appellate courts of sanctions orders against attorneys, take a peek at the Fall 2008 edition of the Seventh Circuit Review. The analysis concludes: “The Seventh Circuit issued the fourth-most sanctions overall and issued the most serious sanctions. In the end, the data suggests that the Seventh Circuit may be ‘nitpicking’ to a certain degree, but that there are other circuits that are nearly as critical of attorneys.”
Here’s the whole article by Patrick Austermuehle, “Just a Bunch of Fusspots and Nitpickers? That Pretty Much Sums It Up,” 4 Seventh Cir. Rev. 34.
Lots of appellate practitioners are solo or in small groups. We can practice at peak levels because extraordinary resources are available at minimal cost. That’s good for clients, and good for us.
I am always thinking about ways to increase the quality of my work product and push down costs. Lately I’ve been mulling over the idea of pooling resources with other appellate practitioners – staffing, electronic, digital, old-fashioned brainstorming with colleagues. Geography is not a limitation on the pooling concept; where you toil doesn’t matter. There is nothing insurmountable to prevent us from getting the best product and service, and the best pricing, from around the world to make our practices better and more cost efficient.
I’m interested in your thoughts. Call me (630-579-6460) or email (email@example.com) if you want to discuss this.
Oral arguments in the Illinois Supreme Court will be posted on the web. The court announced in a press release on 12/7/07 that video and audio recordings of arguments will be available beginning in January 2008.
Posting arguments made in the court will slice some stealth from a primary branch of Illinois government. Most people only vaguely understand what happens in the Supreme Court. They never see a Supreme Court argument, never hear an oral argument, and never see an opinion written by the Supreme Court. People never see how their Illinois Supreme Court Justices, who are elected officials, conduct court or themselves.
Making oral arguments available to the public will direct some sunshine on a fundamental branch of government that ordinarily conducts business behind closed doors.
For more details, the court’s press release is available by clicking here.
The big news from the Illinois Appellate Lawyers Association luncheon to honor the Second District justices yesterday came when Presiding Justice R. Peter Grometer announced the court would definitely increase the number of cases receiving oral argument in the coming year. For as long as I can remember, the Second District Illinois court has been known for not allowing oral argument. No reason for the change in philosophy was given.
Increasing the number of oral arguments bucks the trend we’re seeing in many appellate courts. I wrote some about this in my recent article, “How To Write An Appellate Brief That Judges Want To Read And Answers Their Questions.” And while catching up on my reading, I read Susan Larsen’s comments, in a January 18, 2007 discussion in D. Todd Smith’s very fine Texas Appellate Law Blog. Larsen, formerly a justice on the Texas Court of Appeals, posits that oral argument forces judges to focus on the real people in a dispute and not “just theorize with briefs and transcripts and law books and computer research.”
Most lawyers routinely request oral argument. But most appellate judges I’ve spoken to say that oral argument rarely changes the way judges view a case. Many judges stick by the old saw that you can’t win a case at oral argument but you can lose one. So if the benefits of oral argument are minimal, and you’re more likely to hurt yourself than you are to help, then maybe we shouldn’t be so fast to prop up our egos with routine requests for oral argument.