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.