January 8, 2014

Explain Yourself In Your Subhead

We are nothing if not current.

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.

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January 2, 2014

Ninth Circuit Appellate Practice Guide Posted

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.

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April 11, 2013

Posner On Effective Appellate Briefs

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.

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July 15, 2012

Injured Party’s Appeal Dismissed For Violations Of Appellate Brief-Writing Rules

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.

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March 23, 2012

Two Tips – Author Guberman Gives Two Brief-Writing Tips And Links To More

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.

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January 23, 2012

Illinois Appellate Lawyer Blog Launches “Two Tips”

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.

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December 29, 2011

Schiess’s Seven Recommendations For Improved Writing

Bravo to Wayne Schiess for his candid and succinct seven suggestions for improving your writing. The title of the series, “Improving Your Writing Throughout Your Career,” speaks to one of the important themes every lawyer and writer should accept. Legal writing is a process, not an event, requiring continual refinement throughout your career.

A writer does not peak in the sense that an athlete might. Good writers know they can always get better, and that the improvement process is a career-long journey.

Wayne’s seventh suggestion is especially near to my heart ― accept critique. That’s a lesson I learned about a hundred years ago as a young associate at Big Firm. Today I run a service called AppellatologySM. We’re devoted to helping lawyers improve their appellate briefs. We do that by offering professional advice on how the persuasiveness and readability of your appellate brief can be improved. Our panel of senior lawyers, legal writing experts, retired judges, and scholars conference your brief online, so you can revise it before you file it. You can read more about AppellatologySM by clicking here.

And you can read Wayne Schiess’s seven suggestions at his most excellent blog, Legalwriting.net, by clicking here.

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December 13, 2011

♪♪♪ Appellatology Grand Opening ♪♪♪

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.

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July 2, 2011

Illinois Adopts New Public-Domain Citation Method

Illinois has adopted public-domain citation for all cases filed on or after July 1, 2011. The Illinois Supreme Court has amended its Rule 6, which now also requires pinpoint citation to an assigned paragraph number. Your memorandum or brief may contain a citation to West’s North Eastern Reporter or Illinois Decisions, but those citations will be neither required nor alone sufficient. The official reporter — which we’re accustomed to citing as “Ill. 2d” or “Ill. App. 3d” — is going extinct for cases filed after July 1st.

So what’s a Westlaw researcher to do? A Westlaw telephone researcher reported the company is working on paginating in accord with the public domain versions. No word yet on when the new pagination will be available on Westlaw.

According to the revised Rule 6 comments, here’s how the new supreme court cite should look: People v. Doe, 2011 IL 10234. A pinpoint cite to an appellate court opinion should look like this: People v. Doe, 2011 IL App (1st) 101234, ¶ 15. The “1st” parenthetical refers to the First District Appellate Court, so newly filed appellate opinions will require reference to one of the five appellate court districts. (I wonder why. The Illinois appellate courts are a unified system. Each opinion, no matter which district issues it, should have equal precedential value.)

Here’s a link to Amended Rule 6.

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June 12, 2011

♪♪♪ Sing, Sing, Sing ♪♪♪

Good writing has a lot in common with pleasing music. That’s so for appellate briefs as much as novels. Good narration and argument stays with the reader, and makes the reader want more, just like a toe-tapping melody.

Bret Rappaport says your mind’s ear hears what you read. How do you use that thesis in your appellate briefs? Take a look at Rappaport’s article, “Using the Elements of Rhythm, Flow, and Tone to Create a More Effective and Persuasive Acoustic Experience in Legal Writing,” (Journal of Legal Writing Institute, Vol. 16, p. 65, 2010. Thanks to the (new) legal writer for the reference.

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June 2, 2011

Illinois Changes Official Case Citation System

Changes to the official method of case citation in Illinois go into effect next month. The Illinois Supreme Court Rules will require the court docket number to be cited, and does away with citation to an official printed reporter. Official Illinois supreme court and appellate court opinions will be on the courts’ website. Here is the supreme court’s press release on the changes.

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June 1, 2011

Part 2 Of Guberman Interview On Appellate-Brief Writing

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.

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May 20, 2011

"Point Made" Author Regales About Appellate Brief Writing

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.

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May 6, 2010

Introduction Stricken As Argumentative

The Illinois Supreme Court rules require appellant’s merits brief to have an introductory paragraph. The introduction normally is described as the “Nature of the Action.” I often see appellant merits briefs that have long and argumentative “Nature of the Action” sections. The Second District Illinois Appellate Court recently struck one that was just too much. Here’s why:

Supreme Court Rule 341(h)(2) … governs the requirements of the introductory paragraph. It provides that the introductory paragraph consist of a statement of the nature of the action, the judgment appealed from, whether the judgment is based upon a jury's verdict, and whether any question is raised on the pleadings … Moreover, only the appellants' brief is required to contain an introductory paragraph. The appellee's brief may include one to the extent that the presentation by the appellant is deemed unsatisfactory … Argument is not to be included in the introductory paragraph … Defendants' introductory paragraph is two pages long with one footnote. As vigorously as defendants try to justify it, the entire introductory paragraph is argumentative in violation of the rule. Accordingly, we grant the motion to strike.

The whole case, Artisan Design Build v. Bilstrom, No. 2-08-0855 (as corrected 3/4/10), is right here.

The lesson is: Resist the urge to argue in the introductory paragraph. Just because you can throw down the gauntlet at that point doesn’t mean you should. The rules do not instruct you to do so. And most important is that your audience is not looking for your argument in the introduction.

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October 8, 2009

End-Of-Paragraph Fact Cites Comply With Illinois Supreme Court Rules

Charles Gaston sued the City of Danville, Illinois for the wrongful death of his son. Charles appealed after the trial court entered summary judgment in favor of the city.

The record citations in the fact section of the city’s appellate brief were placed at the end of each paragraph, rather than after each sentence. Charles asked the appellate court to strike the facts in the city’s brief and the arguments that relied on those facts. He argued that the city’s method of record citation violated Illinois Supreme Court Rule 341(h)(6), which requires an accurate and fully cited fact section.

The Fourth District Illinois Appellate Court denied Charles’s request and allowed the city’s brief to stand. The court explained:

The city's brief contains a cite to the record only at the end of each paragraph of the statement of facts and lacks cites entirely in two paragraphs of its argument section. Supreme Court Rule [341] requires a "[s]tatement of [f]acts * * * with appropriate reference to the pages of the record on appeal." … [T]he city provided the cites at the end of each paragraph of facts and these record cites support the facts stated throughout the paragraph and correspond to the information contained on cited page of the record. The rule does not require the brief to contain a cite at the end of each sentence. Moreover, " '[w]here violations of supreme court rules are not so flagrant as to hinder or preclude review, the striking of a brief in whole or in part may be unwarranted.' … We deny the motion to strike.

Charles lost that battle but won the war. The judgment for the city was reversed, and the case was remanded back to the trial court. Read the whole case, Gaston v. City of Danville, No 4-08-0803 (7/17/09), by clicking here.

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February 19, 2008

Fourth District Illinois Appellate Strikes Brief For Lack Of Citation To Record Or Authority

In Crull v. Sriratana, the Illinois Fourth District Appellate Court serves a sobering reminder that all arguments must be supported by record citations and legal authority. In Crull, a medical malpractice case, the appellate court struck plaintiff’s reply brief for lack of appropriate citations.

Rejecting plaintiff’s Joycian stream of consciousness style, the court stated:

The rules of procedure concerning appellate briefs are not mere suggestions, and it is within this court's discretion to strike the plaintiff's brief for failing to comply with Supreme Court Rule 341 … Rule 341(j) , which authorizes an appellant to file a reply brief, provides as follows: "The reply brief, if any, shall be confined strictly to replying to arguments presented in the brief of appellee and need contain only [a]rgument." 210 Ill.2d R. 341(j). Rule 341(h)(7) requires appellants to give reasons for their contentions "with citation of the authorities and the pages of the record relied on." 210 Ill.2d R. 341(h)(7). This court has stated that "[s]trict adherence to the requirement of citing relevant pages of the record is necessary to expedite and facilitate the administration of justice." … A contention that is supported by some argument but no authority does not meet the requirements of Rule 341 and is considered forfeited.

Read the whole case, Crull v. Sriratana, No. 4-06-0952 (10/11/07), by clicking here.

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November 14, 2007

Off Topic, But Not Entirely: New Venture Needs Great Writer With Reporting Skills In Chicago Area

I am formulating plans for a new online venture that will require writers who have an understanding or interest in the judicial process. The individuals I am seeking should have competent reporting skills and be terrific, entertaining writers. This enterprise will begin its efforts in Chicago, so your proximity to the area is necessary. This is a ground-floor opportunity to publish in a unique and an important area of journalism.

Contact me via email through the “Contact” button at the top of this page. Leave a short message and a phone number so I can call you.

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September 9, 2007

Excessive “Nature Of The Case” Does Not Warrant Striking

In this tax dispute, the bank’s brief in the court of appeals contained a 4½-page “Nature of the Case” section. That was “excessive,” according to the Second District Illinois Appellate Court. But the bank’s excessiveness did not interfere with review of the case, so the court declined to strike that section of the brief.

The whole case, County Treasurer v. Lake Carroll Association, No. 2-05-1209 (6/5/07), is available by clicking here.

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July 7, 2007

More Thoughts From An Unconstrained Litigator. Writing An Appellate Brief.

The second in the series of “Thoughts From An Unconstrained Litigator,” is now available for your downloading, amusement, knee-slapping laughter, criticism, and, I hope, thoughtful consideration. Read “Writing An Appellate Brief, Or, How To Make Tax Law An Interesting Read,” by yours truly. It’s posted right here, on the shameless self-promotion section of www.illinoislocalcounsel.com.

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April 18, 2007

A Moot Point

I judged one of the early final rounds of the American Bar Association Law Student Division National Appellate Advocacy Competition a couple of weeks ago. I was told that this is the most prominent moot court competition in the country.

I judged two arguments. Each team split the argument between two teammates. All eight of the contestants I judged did a fine job. Insofar as performance was concerned, the difference among these teams was on the margin. All of the presentations were polished, and one of the defense teams offered an especially good and professionally structured argument.

The teams’ briefs were independently assessed and scored for the competition. The scoring system places heavier emphasis on the oral presentation than the written product. I guess that’s the way all moot court competitions are. That’s a problem that needs to be fixed.

In the real world of appellate practice, the written brief usually is far more important than oral argument. An overwhelming number of cases are decided on the briefs. And most judges I’ve heard on the subject say that oral argument rarely persuades them one way or another. The anecdotal evidence I get from colleagues around the country supports the notion that appellate courts are allowing oral argument in fewer cases than ever. I wrote about this in a recent article, “How To Write An Appellate Brief That Judges Want To Read And Answers Their Questions.”

So to the extent moot court is an educational experience meant to prepare students for real appellate practice, greater emphasis should be placed on the teams’ written product. Oral argument can be important in some cases, but its decreasing influence should be acknowledged in moot court competition.

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February 26, 2007

The Proof Is In The Reading

What you think you’ve written is not always the way it reads. That’s why the best way to proofread any writing, legal brief or quick email, is to read it out loud. Can’t be bothered? James Michener did it, and his novels are longer than a tall drink of water.

Well, maybe you have a sore throat or you just don’t have it in you to read your 50-page brief after you’ve worked on it for a month or more. Save your mellifluous tones and let Ultra Hal Text-to Speech Reader do the work. I learned about Ultra Hal from Eric Waltmire’s Blog. Ultra Hal TTS Reader reads your text out loud. You’ll be able to hear if what you wrote is what you meant to say. Ultra Hal TTS Reader is free. It’s very cool, and it does improve the proofing process. I used it for this error-free entry.

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February 25, 2007

Appeal Stands Despite Litany Of Deficiencies In Brief

Plaintiff bought a car that he claimed had an “unremediated defect.” He appealed after his case was dismissed at trial. The appellate opinion contains a list of horribles in plaintiff’s brief and the record -- misleading Points and Authorities and Issues sections, lack of citation to the record, an incomplete record, to name a few. Despite the numerous transgressions from the Illinois Supreme Court Rules, the court considered the appeal, stating:

Given the deficient brief and record, it would be within our discretion to affirm the sanction [dismissal] order without further comment. Even so, we have read the transcripts of the three-day trial, determined they adequately convey the conduct at issue, and decided to rule on the merits of the sanction.

The entire case, Gonzalez v. Nissan North America, No. 1-05-3539 (1st Dist. 12/4/06), is available by clicking here.

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January 16, 2007

ISBA Effective Legal Writing Seminar

Last week the ISBA sponsored a seminar on Effective Legal Writing. I was intrigued by the promo, which promised going beyond the usually drab basic stuff you can get from any decent style book. Greg Colomb, an English professor at the University of Virginia, taught the seminar. He did not disappoint. He was witty and thoughtful as we deciphered and rewrote samples of ineffective and effective writing.

The discussion about writing “flow” was particularly impressive. Greg emphasized two points.

1. Sentences are bundles of information. Readers understand longer, more complex information better when it arrives at the end of a sentence. The “architecture of a clear sentence” suggests placing short bundles of information before long bundles.

2. Clarity and directness depend on the first six words in your sentence. Use the six-word test to assure you are opening with a familiar subject taking important action.

Greg also discussed principles of writing persuasively. The crucial question for the writer is: What creates the mental disposition in my reader to do what I want? Readers have three tendencies the writer should acknowledge in trying to create that mental disposition:

1. Readers always remember details concerning the main character first.

2. Readers tend to hold the main character responsible.

3. Readers tend to judge events through the value system of the main character.

The seminar goes on my recommended list. Experienced writers and writers at the infancy of developing their style should benefit from it. More information about writing technique and style is available at the University of Virginia English Department’s web site, by clicking right here.

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December 21, 2006

Unringing The Bell. Illinois Second District Appellate Admonishes Counsel For Argument In The Facts.

Argument should be saved for the Argument section of your brief. In Illinois, Supreme Court Rule 341 prohibits argument in the Fact section. When Commonwealth Edison filed a brief that stepped into foul grounds, the Second District Appellate Court “admonish[ed] counsel for ComEd to comply with the supreme court rules in the future.” The court read Com Ed’s facts, but disregarded the statements that violated Rule 341.

The whole case, Village of Roselle v. Commonwealth Edison Co., No. 2-06-0294 (2006), is right here.

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December 13, 2006


I am writing a series of articles for the DCBA Brief, the journal for the DuPage County, Illinois Bar Association, that we’re calling “Thoughts Of An Unconstrained Practitioner.” The first article, published in November 2006, is titled, “How To Write An Appellate Brief That Judges Want To Read And Answers Their Questions.” This article suggests the steps a lawyer and writer must take to prepare an appellate brief. The article is available on my website, www.illinoislocalcounsel.com, by clicking here.

Next in the series, to be published in January 2007, I think will be titled, “Writing An Appellate Brief, Or, How To Make Tax Law An Interesting Read.” This article suggests ideas for good writing. It’s not a rehash of the stuff you can get from Strunk and White, and any number of other good writing manuals. It’s Merican’s unconstrained thoughts on good writing for appellate briefs.

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