Articles Posted in Appellate Advocacy

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An article published in 2003 about effective subheadings, available here for the clicking, was referenced at the top of a “legal writing” Google search I just did. Authors Kara Thompson and Zach Brez for the Writing Center at the Georgetown University Law Center, did a fine job in this short piece explaining the importance of the “point heading.” (Except please don’t make subheads all caps; typical sentence style, boldfaced, is better.)

Don’t be lazy about drafting the subheadings. Sometimes they will be the most important part of your brief.

Conventional wisdom says to limit your subheadings to one sentence. But that’s not necessarily best practice.

Have you ever encountered a cold court? Sometimes judges don’t have the time or the desire to read your brief thoroughly, or at all, before your case is called. I’ve watched judges leaf through my motion or my brief during oral argument. I want that judge to understand my positions. One-sentence subheadings don’t always accomplish that.

So by all means, make those subheads incisive and argumentative, and a little bold. And don’t be afraid to give the judge more help understanding your positions with a longer subheading.

The Appellate Lawyer Representatives’ Ninth Circuit Practice Guide is available for the downloading from the Ninth Circuit’s web site. It’s a how-to for preparing and filing a brief in the federal appellate court out yonder in California. But it’s chock full of good tips no matter what jurisdiction you find yourself in.

You’ll want to look at the Top Technical Flaws In Briefs. Some of these are more than just technical. Don’t make one of these head-shaking mistakes.

Get the whole guide by clicking here.

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.

Tip One

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 . . .

Tip Two

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.

Tip One
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.

Tip Two
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.