A Brief Guide to Brief Writing : Demystifying the Memorandum of the Law 9781627223058, 9781627223041

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A BRIEF GUIDE TO BRIEF WRITING

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A BRIEF GUIDE TO BRIEF WRITING DEMYSTIFYING THE MEMORANDUM OF LAW

JANET S. KOLE

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Cover design by Andrew Alcala/ABA Publishing. The materials contained herein represent the opinions and views of the authors and/or the editors, and should not be construed to be the views or opinions of the law firms or companies with whom such persons are in partnership with, associated with, or employed by, nor of the American Bar Association or the Section of Litigation unless adopted pursuant to the bylaws of the Association. Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for educational and informational purposes only. © 2013 American Bar Association. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. For permission, contact the ABA Copyrights & Contracts Department at [email protected] or via fax at 312-988-6030, or complete the online form at http://www.americanbar.org/utility/reprint.html. Library of Congress Cataloging-in-Publication Data Kole, Janet S.

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A brief guide to brief writing / by Janet S. Kole, American Bar Association, Section of Litigation, Chicago, IL. pages cm Includes bibliographical references and index. e-ISBN: 978-1-62722-305-8 1. Legal briefs—United States. I. Title. KF251.K65 2013 808.06’634--dc23 2013034059 Discounts are available for books ordered in bulk. Special consideration is given to state bars, CLE programs, and other bar-related organizations. Inquire at Book Publishing, ABA Publishing, American Bar Association, 321 North Clark Street, Chicago, Illinois 60654-7598. www.ShopABA.org

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Table of Contents Dedication Acknowledgments Introduction Chapter 1: What Is a Brief? Chapter 2: What to Avoid in a Persuasive Brief Avoid these things 1. Run-on sentences 2. Poor grammar Avoid these things, too 3. Lack of dignity 4. Reliance on technology 5. Too much political correctness 6. Failure to follow the rules 7. Improper citations to the law

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8. Confusing and confused arguments 9. Dirty briefs 10. Ad hominem attacks 11. Poor organization Chapter 3: What Do You Want the Court to Do? Chapter 4: Humanize Your Client Chapter 5: Write Your Story Write a Boffo Beginning Use Easy-to-Read Language Avoid Jargon Keep It Simple Keep Your Words In the Mainstream Keep the Narrative Focused Use the Active Voice Tell Your Story from the Beginning Courts Sanction Bad Writing Chapter 6: Find and Argue the Law

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Misstating the Holding of a Case Saving Your Best Arguments for Last Chapter 7: The Responsive Brief Chapter 8: Lower Court/Appellate Court Differences Chapter 9: The Summary of Argument, or “Introduction” Chapter 10: Follow the Rules Chapter 11: The Mechanics of Organization Anatomy of a Rule Chapter 12: Ethical Issues Chapter 13: Who’s in Charge Here? Chapter 14: Oral Argument Chapter 15: A Brief in Brief Brief-Writing Checklist Persuasive Writing Rules of Thumb Index About the Author

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For Wendy and Gabe, with love

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Acknowledgments Over the years, I’ve been able to watch other lawyers do both good work and bad work. After thirty years of practice, I’m able to tell which is which. I won’t thank the lawyers who showed me the wrong way to go about things, but in terms of good brief writing, one lawyer stands out as a guide: Denis V. Brennan of Morgan, Lewis. Thanks, Denis. Two others from that firm also deserve thanks for teaching me about how to write briefs: Joseph Torregrossa and Carl Solano. You may notice that all my teachers are men. That’s because in those early, early days of the practice of law, there were no women partners. And there were few senior associates of the female variety to give me advice. I learned by example, however, as I watched thenassociates Carole Handler and Sherry Swirsky at Schnader write terrific briefs. Thanks, gals. Lastly, my patient editor, Spencer Punnett, deserves thanks for reading my drafts and suggesting course corrections. Thanks, Spencer.

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Introduction I’m sure you took a legal writing course in law school. I did, too. I was disappointed to learn, once I became an actual lawyer, that the writing course had absolutely no use in the real world. You may also have been involved in moot court. In doing so, you had the opportunity to write briefs. Again, as I discovered, those briefs have very little value in the real world of practicing law. You are not born with the ability to write persuasive, effective briefs. And, unfortunately, you are not taught in law school how to do it, either. You can be a good writer—string sentences together, use proper grammar—and still not be able to write a good brief. “Why should this be?” I hear you asking. The reason is simple. Briefs are strange hybrid creatures, a combination of legal reasoning and good storytelling. You might be able to write a novel, and yet your legal briefs are unpersuasive. You need to be able to construct a persuasive legal argument in support of your client’s case while telling your client’s story. In law school, the focus is on your reasoning, not the elegance of your prose.

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Because the practice of law is an art, not a science, you may find that your writing style is different from mine or from your colleague’s. But the aim of every brief is always the same—to persuade. This means that there are funda mentals that you should adhere to in order to create a good brief, and there are big mistakes that you must avoid. Many lawyers have written books—tomes, really—on the basics of good brief writing. This book is a brief guide to brief writing, not a tome, and my aim is to allow you to use it as an outline or a refresher for whatever brief you must write, whether it’s a main brief, reply brief, or surreply, and whether it’s a lower court or appellate brief. I hope that in addition, this book will enable you to enjoy telling your client’s story persuasively and effectively.

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A Typical Brief Looks like This In the United States District Court for the Middle District of Texarkana ABC Corporation, Inc.

v. 2012-987

Civil

Action

No.

Joe Blow, Inc.

Memorandum of Law in Support of Plaintiff’s Motion for Summary Judgment

Plaintiff ABC Corporation, Inc. hereby submits this memorandum in support of its motion for summary judgment against defendant Joe Blow, Inc.

Summary

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The Facts

Argument

Conclusion

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Chapter One

What Is a Brief? When I was a brand-new law clerk at a big law firm, I had no idea what I was supposed to do when I was asked to write a motion and supporting brief. So, I will start with the most basic question: What is a brief? Generally, it is a short summary of a position that you are taking on behalf of a client. It includes the facts of your case, the relevant law, and how you want the court to apply the law to the facts. A brief is often called a “Memorandum of Law.” There are also local variants. In New Jersey, for example, practitioners often file “Letter Briefs.” Very few cases are tried in court these days—anywhere from 90 percent to 95 percent of filed cases are settled or disposed of through motion practice. That means that your ability to write a good, persuasive, winning brief will most likely be the determining factor in whether your client wins. If you’ve never actually laid eyes on a brief, ask one of your colleagues for an example or look it up online. You’ll see that it’s “brief” only in the sense that it’s not as long as a novel. If a colleague is good enough to show you a brief, keep in mind that it may not be a persuasive brief. It may have some elements that you should not emulate. I will discuss these no-nos in the next chapter. 15

The bare bones of what must be in a brief in your jurisdiction are what I call the formal requirements. You will find the formal requirements in your local procedural rules. You will not learn how to write a brief from the procedural rules, but you will learn whether there are page limits, whether there is a requirement for a table of authorities, when the brief is due, and how many copies you need. Many local rules also lay out the order in which you must present your brief. I say this to lawyers all the time, and it is equally important when writing a brief: read the rules. If you are in state court, read the state procedural rules. If you are in federal court, read the federal rules and your district court’s local rules. If you are in an appellate court, read the rules. You get the picture. You flout the rules at your peril, and you endanger your client’s case, too. But the formal requirements are just the framework. The goal of a brief is to persuade the reader—the judge, the panel, or the law clerk. A good brief is a persuasive brief. You became a lawyer to advocate for your client, didn’t you? You have faith in your ability to persuade. In the following chapters, I’ll talk about how to maximize your inherent persuasiveness.

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Chapter Two

What to Avoid in a Persuasive Brief Let me wax philosophical about this for a moment. Leo Tolstoy says, at the beginning of Anna Karenina, “Happy families are all alike; every unhappy family is unhappy in its own way.” In the case of briefs, this truism is reversed. All good briefs are different; every bad brief shares the same elements. As I mentioned in the first chapter, you may be reviewing the briefs of colleagues in order to get a handle on what writing a brief is all about. But if your colleague has some bad writing habits or is unethical or disorganized, you will see elements that you should avoid like the plague. So I will start with an analysis of what makes bad—unpersuasive—briefs. When you are writing a brief, you are trying to convey the rightness of your client’s position. Anything that detracts from this focus makes a brief bad. Remember that you are asking a busy judge, or a busy panel of judges, to rule in favor of your client. You want to get the judge’s attention quickly and move him or her to accept your reasoning.

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The following no-nos will make the reader believe your argument sucks, which is the term of art for unpersuasive briefs. Additionally, these things often make judges mad. A judge who is mad at you is often an unpersuaded judge who will take the anger out on your client’s position. So, Avoid these things: You should have learned to avoid these first two elements in school. 1. Run-on sentences. Keep your sentences short and to the point. If you don’t use run-on sentences, you will be less likely to make punctuation errors. In fact, you may find you only need to know how to place a comma and a period. Judges don’t have time to read excess verbiage, and a series of long sentences will turn them off—and possibly even tick them off. 2. Poor grammar. There is nothing a judge or law clerk will find more distracting than a grammatically incorrect sentence. Make sure your verbs agree with your nouns. If the subject of your sentence is plural, make sure the verb is as well. And use correct punctuation. Some judges are so annoyed with really ungrammatical briefs that they strike them and even, sometimes, sanction the attorney responsible for them.

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Avoid these things, too: 3. Lack of dignity. A brief is not the place to experiment with poetry, jokes, or scatology. A lawyer was recently held in contempt for filing a brief that was a parody of “The Night Before Christmas.” If I had been the judge, I would have made it clear that the contempt citation was due to the poor writing, not the attempt at poetry. In any case, even if your judge might issue a ruling in verse, forego the urge to poetize. 4. Reliance on technology. One of the worst things ever invented is spell-checker and its buddy, auto-correct. I say that because you can use the wrong word in your brief and never know it if you rely on spell-checker to proofread your brief for you. For example, an associate was writing a brief for my client that involved a New Jersey statute, the Industrial Site Recovery Act, abbreviated ISRA. Without proofreading it, he handed it to me. It referred throughout to “Israel.” Spell-checker and auto-correct were the culprits. Another example: one of my associates wrote that a contract clause was unnecessary because it was “duplicitous.” I told him that he had used the wrong word. He meant “duplicative.” He argued with me, telling me that spell-checker said “duplicitous” is a word. Of course, it is a word, but not the right word in this instance. He should have checked the dictionary definition.

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(“Duplicitous” means double-dealing or untrustworthy; “duplicative” means redundant.) 5. Too much political correctness. This sounds as though it couldn’t possibly be a problem—you desire to be gender neutral in your writing. And yet, the facts you are dealing with in your brief involve real people, real males and females. So when you use a pronoun in your brief, it should relate to the real person in your case. As Gerald Lebovits wrote, in a tongue-in-cheek article on how to write bad briefs: Make the judge dwell not on your content but on why you used “he” or “she.” If you’re not sure whether to use “she,” “he,” or “it,” use all three, like so: “s/he/it.” There’s nothing like a few “s/he/its” to make your brief look exactly like that. (“Writing Bad Briefs: How to Lose a Case in 100 Pages or More,” May 2010, New York State Bar Association Journal.) You should not strive for gender-neutral language to the exclusion of common sense. 6. Failure to follow the rules. Don’t piss off the man or woman in black robes. One idiosyncratic judge was peeved when the staple from a brief cut his finger. His judge-specific rules thereafter required that all staples be covered with tape. A lawyer who failed to follow this rule was courting disaster.

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Although this specific problem is less likely to occur in courts where e-filing is required or is the norm, you must still deal with each judge’s specific rules. 7. Improper citations to the law. Improper citations include many different elements. a. Failure to cite the case properly in terms of where it can be found. b. Incorrectly describing the holding of the case. c. Failure to cite the holding in a way that is relevant to the point you are trying to make. Any of these three improprieties will make a judge or judges unhappy with you and thus less likely to be persuaded by your arguments. I will discuss in later chapters the use of legal precedents in your brief. However, the need to cite a case properly is as fundamental as reading the rules. In fact, your local rules may determine the form of citations. The so-called “Bluebook” may still be the format for citation in your jurisdiction. Make sure you follow the citation form approved by your court. 8. Confusing and confused arguments. Recently, in addition to dismissing or striking incomprehensible pleadings, judges have begun to sanction lawyers for writing incomprehensible briefs. In

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one recent case, the US Court of Appeals for the Seventh Circuit suggested that a lawyer should be disbarred for failing to write clearly: All the deficiencies that plagued the various versions of the complaint also infected his briefs here. Maksym [the lawyer] never directly addressed the issues before this court, relying instead on cases of marginal or no relevance. In the table of authorities in his opening brief, he cites 81 cases, but almost all of them are completely irrelevant to the issues presented here. In his reply brief, after the defendants had crystallized the issues, Maksym again failed to meaningfully—or even comprehensibly—articulate an argument. His appellate briefing was characterized by a reliance on irrelevant, conclusory, and often incoherent arguments of which the following is a representative example: “Plaintiffs claims were not ‘intelligible’—no ‘needle in a haystack’ as Appellees’ claim.” In short, Maksym’s entire approach to this case was alarmingly deficient. For all the foregoing reasons, we hold that the district court was well within its discretion to deny leave to file the second amended complaint and to dismiss the case with prejudice. We also order Maksym to show cause within 21 days why he should not be removed or suspended from the bar of this court or otherwise disciplined under Rule 46(b) or (c) of the Federal Rules of Appellate Procedure. We also direct the clerk of this court to send a copy of this opinion to the Attorney Registration and Disciplinary Commission of Illinois for any action it deems appropriate.

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Stanard v. Nygren, 658 F. 3d 792 (7th Cir. 2011). 9. Dirty briefs. I have on occasion been served with a brief that had coffee stains on some of the pages. In other matters, the papers had something indescribable stuck to them. Your opponent should not have to wear surgical gloves to read the brief. Worse still, the judge’s law clerk should not have to. Of course, now that most advocates serve each other electronically, this element of bad briefs should be eliminated. Which means you will get to mess up the printouts with your own lunch. As for the other meaning of “dirty briefs”—that is, using obscene language—I will discuss later why this is sometimes necessary. 10. Ad hominem attacks. Nothing angers a court as much as attacks on the judiciary. “[T]o argue that a court has committed an error is one thing; to argue that a court has intentionally committed that error due to an improper motive is quite another. There is a light year’s difference between an innocent mistake of fact or law and the intentional fabrication of evidence or the intentional misstatement of a holding.” Peters v. Pine Meadow Ranch, No. 20050806 (UT 2007). The Utah Supreme Court sanctioned the lawyer and dismissed his brief as “scandalous.”

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Another bad idea: demonizing the opposition. “[A]n attorney who submits documents to the district court that contain ad hominem attacks directed at opposing counsel is subject to sanction under the court’s inherent power to oversee attorneys practicing before it.” Thomas v. Tenneco Packaging Co, Inc., 293 F. 3d 1306 (11th Cir. 2002). How to Lose an Appeal on the Briefs The Utah Supreme Court declined to rule on issues the Court found to be interesting and worthy of argument because the petitioners’/appellants’ lawyers were, to put it mildly, idiots. The appellants lost their case, and the lawyers were sanctioned. “We granted certiorari in these two related cases to review the issue of whether the beneficiary of a trust has authority to impose binding covenants, conditions, and restrictions on real property held in trust. We decline to reach this issue, however, because petitioners’ briefs in each case are replete with unfounded accusations impugning the integrity of the court of appeals panel that heard the cases below. These accusations include allegations, both direct and indirect, that the panel intentionally fabricated evidence, intentionally misstated the holding of a case, and acted with improper motives. Further, petitioners’ briefs are otherwise disrespectful of the judiciary. Accordingly, we strike petitioners’ briefs as containing irrelevant and scandalous matters in violation of rule 24(k) of the Utah Rules of Appellate Procedure, affirm

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the result reached by the court of appeals in each case, and assess attorney fees against petitioners’ counsel. Because we have not considered the certiorari question in either case and have not taken the opportunity to review the merits of the court of appeals’ decisions, we limit those decisions to their facts and deem them without precedential effect.” Peters v. Pine Meadow Ranch Home Association, 151 P.3d 962 (Utah 2007). 11. Poor organization. This problem is directly related to item 8, confusing and confused arguments. You cannot be persuasive if you are disorganized. As I mentioned above, the rules in certain jurisdictions will dictate the contents and sequence of the sections of your brief. Do not ignore these rules. And now, on a positive note, let’s talk about what you should do to be persuasive.

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Chapter Three

What Do You Want the Court to Do? In order to be a persuasive advocate, you first have to be sure you know what your client wants. This is not as easy as it seems. Often, a client will tell only what he wants you to know and not what his real goal is. As an example, let me tell you about a client of mine who didn’t reveal his real purpose to me. Let’s call him Mr. D. Mr. D had contracted to buy a piece of property with known contamination. Before he would “seal the deal,” though, he wanted me to negotiate with the Department of Environmental Protection to ensure that he wouldn’t have to remediate the site. He told me that he really wanted the property. As it turned out, he was lying to me; what he really wanted was to wiggle out of the deal, or at least have the seller reduce the price. He assumed, wrongly, that I wouldn’t be able to remove his liability. After Mr. D fooled me, I developed a new tactic for determining a client’s real goal. I would let them sit with me and tell me their story and what they needed or wanted from the lawsuit they were involved in. I would let them go on as long as they wanted, asking questions

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along the way. And then, just before the end of my meeting with them, I would ask this question: What do you really want? I’m sure there are clients who will still lie to you even after you ask this question, but I never had the Mr. D problem again. If you are sure you know what your client wants, you must focus on the narrower but equally central question: What are you asking the court for in your brief? What is the goal of the brief you’re writing? Are you asking the court to throw out your opponent’s case? Are you asking for more discovery before trial? Are you resisting a motion for summary judgment? You will not be able to persuade the court until you figure out what you want. If you have ill-defined goals, your brief will be unfocused and unpersuasive. If your brief is in support of a motion you have filed, most likely you know what goal you have in mind. Often, however, you are in the position of responding to another party’s motion. Then you will be filing a memorandum in opposition to the motion. Unless you believe the motion has a 100 percent chance of being granted by the court, you should have a clear idea of why you believe the motion should not be granted. This is the goal of your brief—to resist the granting of the motion. Sometimes, you will know ahead of time that the judge is going to grant your opponent’s motion because the judge invited your opponent to file it. You believe the judge is wrong on the facts and the law. Even though you 27

know that you will lose this battle, you must preserve your arguments for the future—for an appeal, for example, or a reconsideration by the court. However, if you know that your client is going to lose because your client is taking an unreasonable position on whatever the issue is, stop and think about whether you should resist the motion at all. You may please your client by fighting to the death over an issue about which he is being stubborn, but a court may find your defense so frivolous that you will be sanctioned for pursuing it. If you are having trouble figuring out your goal, imagine the judge in your case saying to you, “What do you want me to do? What are you asking me for?” Your request for relief may be affirmative (throw out the plaintiff’s case on summary judgment) or negative (don’t grant the plaintiff’s motion for summary judgment). Whether you are a proponent or an opponent, you must simplify in your own mind what you are asking the court to do for your client. It is up to you as the advocate to show the court the way to the goal you have identified. As old-time lawyers often say, if the facts are in your favor, pound the facts. If the law is in your favor, pound the law. (The saying continues: If neither is in your favor, pound the table. Or, in other versions, pound opposing counsel. I believe we should all ignore this suggestion.) If you believe you have clearly defined for yourself what you want the court to do, it is time to prepare a game plan. What is your strategy to persuade the court? What facts must you emphasize to show that your client should 28

win? Do you need to attach exhibits to your brief to emphasize or prove these facts? What legal theory should you use to persuade the court? Do you need to pound the law, or pound the facts? Remember that most of the time, judges want to do what is fair. The more you can show the judge that ruling for your client is the fair thing to do, the better your chance of success. This is true whether your client is an 85-year-old widow or a multinational corporation. Now that you have identified the goal of your brief, you want to be sure that the judge or judges, your audience, finds your client sympathetic. A key element of persuading the court is to humanize your client.

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Chapter Four

Humanize Your Client You are an advocate. Persuading a judge or jury rests in part on making them feel comfortable with ruling in your client’s favor. You want to humanize your client, or, to put it another way, make your client appealing. The flip side is also true. If you can make the other side seem objectionable, it will be easier for the judge or jury to find against them and in your client’s favor. Casting your opponent in a negative light is often easier than humanizing your own client. All lawyers enjoy vilifying the other side. They are all liars and cheats! They are stupid and mean! This is one of the reasons that cross-examination is so satisfying and so much more exciting than direct. I ripped that guy a new one on the stand! I had him eating out of my hand! He would have agreed to anything by the time I was done with him! However, as I mentioned above, judges don’t like it when a lawyer makes ad hominem comments about an opponent. If you’re going to put your opponent in a bad light, do it with finesse. Don’t say: the plaintiff is an f-ing liar! Say: the plaintiff broke his promise. Or: the plaintiff said the light was green, even though he knew it was red.

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But how do you humanize your own client? What if your client isn’t a little old lady in tennis shoes, but a huge corporation? What if your client is just a bad person? What if your client is ugly, crude, rude, and obnoxious? I’ll start with the easy one: how to humanize a corporate client. In many cases, it is easier to humanize a client at trial, where the judge and jury get to see whoever is sitting beside you at counsel table and to see corporate witnesses on the stand. In my most enjoyable jury trial, I defended a large university hospital against a malpractice claim. I chose as the corporate representative a pregnant nurse, who looked as though she was about to give birth any minute. It helped that she had the face of an angel in a classical painting. She put a human face on the client. I won that case. Be Creative One of the more subtle ways to make your client appealing and your opponent less so is to use evocative acronyms or nicknames to refer to them. For example, if you’re representing a hospital named Humility of Mary, rather than refer to it throughout your brief as “hospital” or “defendant,” call it “Humility.” If you’re representing an entity whom the public perceives as a bad actor, use an alternative name that the public is less aware of. For example, let’s assume the company is Horrible Oil Spill Company, a wholly owned

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subsidiary of Nestle Foods. You could refer to it by an acronym (“HOSC”) or as “subsidiary.” You want to use everything in your power to humanize your client in your brief. But how can I convey that humanity in writing? I can describe the hospital as a place where caring individuals try to help sick people. Where even caring people can make mistakes. And where sometimes, bad things happen that are accidents, not the fault of a caregiver. Arguing that a hospital peer-review committee properly suspended a doctor’s privileges, and that the hospital should be protected against a lawsuit, a group of amici curiae lauded the health care providers. “Hospitals care for patients.” Brief of Amici Curiae, Poliner, M.D. v. Texas Health Systems, Case No. 06-11235 (5th Cir.). “Dr. Knochel, a kidney specialist, chaired the hospital’s Internal Medicine Department…. After Dr. Larry Poliner completed his work on patient 36, three physicians complained to Dr. Knochel about Dr. Poliner’s treatment of the patient. As Dr. Poliner admits, Dr. Poliner did the wrong operation on patient 36…. When an experienced physician makes a significant mistake while operating on a heart, allowing him to continue such operations before further investigation can be done “may” be an imminent danger to the health of one of his patients…. This Court … should put patients first. Dr. Poliner has at all times admitted his mistake. His mistake was seri

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ous enough to merit an investigation. The temporary restrictions of his invasive cardiology privileges pending investigation were in the furtherance of health care.” This brief hit all the points necessary to humanize the health care providers, including the doctor who made the mistake. It’s all about the patient, about putting patients first. And even experienced physicians make mistakes. A harder case is where the client is a multinational corporation. Here, the goal is to explain all of the good works and good intentions of the corporation. For example, in a Supreme Court brief aimed at preventing lawsuits against global conglomerates for human rights abuses in countries other than our own, Chevron Corporation, Dole Food Company, Dow Chemical Company, Ford Motor Company, GlaxoSmithKline PLC, and Procter & Gamble Company filed an amicus brief. All of course are heavy hitters. This is what they said about themselves: Amici unequivocally condemn human rights abuses, and are committed to conducting global commercial affairs in a lawful and responsible manner that is respectful of all persons where they do business. They also strongly support international human rights law, which imposes extensive obligations on nations to respect human rights. Amicus Brief, Kiobal v. Royal Dutch Petroleum, No. 10-1491 (U.S.).

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On the one hand, the passage I just quoted certainly displays the “good works” kind of message that helps in humanizing a corporation. On the other hand, the selfcongratulatory tone of this brief may indicate that the amici went too far in trying to humanize themselves. Particularly since the very next sentence explains that they are “opposed … to causes of action against corporations for alleged human rights violations in foreign countries.” The Supreme Court ruled in their favor in April of 2013. What if your client is obnoxious? There is still a way to make your client sound deserving of justice. You must fold into your introductory facts the relief that your client is seeking. You must show that he deserves fairness under our system of justice no matter who he is. Here is how this works. Let’s assume your client is a pornographer. How do you make this client sympathetic? You wave the flag and cite the Constitution. In this brief, the pornographer is a hero, an avatar for the First Amendment, upholding the right of free speech: The particular online publication that the Application seeks to protect, “Fuckingmachines.com” (with the trademark registration applied for) constitutes protected speech within the meaning of the First Amendment to the United States Constitution. Appeal of Cybernet Entertainment, brief for appellant, July 28, 2005.

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There are also subtler ways of humanizing your client. I have made this point before when I’ve written about how to write pleadings. If you can, think of an acronym or a “nickname” for your client that makes your client sound warm and fuzzy. So if your client is a corporation, don’t call it “corporation,” call it by its name. “ABC Corporation” would then become “ABC” throughout your brief. If your client is a pornographer, as was the case in Falwell v. Hustler Magazine, 485 U.S. 46 (1988), you will not call your client “Hustler,” but you will call it “publisher,” or “speaker,” since what’s at stake is the First Amendment. Of course, if you really detest your own client, “humanizing” will be an almost insurmountable task. If that’s the case, why are you representing him? If it’s for a matter of principle, that is your “hook” into your client’s humanity. If it’s for the money, you may want to rethink your practice. I’ll discuss this more below, in a chapter on ethics. Once you have figured out the hook to make your client appealing, it is time to craft your statement of facts.

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Chapter Five

Write Your Story Lawyers tend to think of briefs as expositions on legal issues. That is wrong. A brief is an explanation of why your client, given the facts of your particular lawsuit, is entitled to relief from the court. That explanation requires you to describe the factual situation in a compelling way and to point out the law that supports your request for relief. The facts of your case are the heart of your brief. You must be familiar with them as no one else is, and you must be able to convey to the court why your client deserves what you’re asking. You must also give the court a rationale for granting your requested relief. Most often, the rationale will be grounded in a legal analysis. Occasionally, however, you may find that the law is not on your side, but that your client would be unfairly treated if the existing law is applied by the court. In this latter case, you must convey to the court the injustice of applying the law as it stands. This works in one of two ways. The court ignores the legal precedent or—and this is better for your client—finds a way around it. In a rare case, a court will overturn

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long-standing precedent in order to do justice. (When the court ignores or purports to overturn precedent in order to grant relief, it may increase the chances of the holding being reversed on appeal.) Lawyering is an art, not a science. As a result, you may find that some advocates believe you must marshal your legal arguments before deciding on how to state your facts. I believe that you want to first figure out how to tell your client’s story in a compelling way, so that a judge or panel of judges is moved to do justice for your client. Then you frame your legal arguments. However, this “which comes first” disagreement is much like the chicken and the egg: it doesn’t really matter, because before you submit the brief, you will be making the factual part and the legal part congruent, sometimes changing your legal arguments, sometimes changing which facts you emphasize. The bottom line is that you have to start somewhere, and since I’m writing this book, I will first discuss how to write your client’s story. This is more formally called the Statement of Facts. But first—be ethical. The facts are the facts, whether or not you or your client are happy with them. You can emphasize the positive and try to ignore the bad facts, but if you misstate the facts in your brief, you will run afoul of rules of conduct in every jurisdiction. You will also make the judge or panel very angry. Because there is no way you won’t be found out. And an angry judge will not be persuaded that your client has the better case. Write a Boffo Beginning 37

Not every lawyer is a natural born writer. Law school doesn’t prepare us for writing interesting narratives. The vast majority of law school graduates write “legalese” instead of English. One young lawyer at my firm, otherwise very bright, insisted on using the words “prior” and “subsequent” instead of “before” and “after” in her legal writing. When I pointed out to her that her language was too formal and legalistic, her defense was that she always talked that way, even before she went to law school, so that’s the way she writes. Really? She had one thing right, though: your narrative will be more compelling if it sounds closer to spoken than to written language. This doesn’t mean that you should drop your g’s or use slang. It just means that you are explaining the facts in a human, interesting way. As an example, here is the factual scenario of a matter I handled for a long-term client, a builder. It was an environmental case. The builder had bought two hundred acres of farmland for a development. The farmer had signed a statement that the property had never been used for a landfill. Once the builder broke ground, he found bottles and leaking drums of chemicals. Oops. A lot of the years of discovery and evidence introduced at trial involved complex geological and chemical issues. Representing the plaintiff developer, I tried the case before a jury and won. My opponent appealed. My associate 38

tried her hand at writing the appellate brief in support of upholding the jury’s award of damages. She discussed at length the evidence of environmental damage. She set out in the brief the language of the contract, that the property had never been used as a landfill. “Proving” Your Facts: Citations to the Record How do you “prove” to the judge or panel that the facts making up your statement of facts are true? First, check the rules. Whether you are writing a lower court brief or an appeals brief, the rules will set out for you the method of citing to the record. If the rules so require, you will attach an appendix to your brief and point to the page numbers in your appendix where the relevant facts are to be found. If no appendix is required, you will cite to the documents on which you rely—for example, a contract, or the complaint, or an affidavit. You should attach these documents to your brief as numbered exhibits. Don’t rely on the fact that an important document has already been filed in the case if you are referring to it. Attach it. Particularly where there are hundreds of filed documents in a case, you cannot expect a judge or even a clerk to find something that you rely on. Usually, the rules will set out how to cite the place in the record that supports your factual assertions. If the rules are silent on this, use a method that makes

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logical sense—for example: See Contract, attached as Exhibit 8, see. If she had been writing a brief for a moot court project, she probably would have gotten an A. But I wanted to grab the judge’s attention. I went to my trial notebook and pulled out a copy of my opening statement to the jury. I had started like this: This case is about a lie. Farmer Defendant promised Mr. Developer that there were no hazardous substances buried on his farm property. That was a lie. I wanted the brief to have the same effect on the appellate panel that the opening had on the jury. I wanted to humanize the dispute and to subtly influence the court’s view of the losing defendant. I wanted the panel to think: the defendant is a liar. So I began my brief this way: “This is a complex environmental case, but it boils down to one simple fact: the defendant made a promise that he broke.” The first lesson for good writing in a brief is simple: grab the reader with the best reason for upholding your position, whether it’s an appealing fact or a compelling argument. State the reason succinctly. Then you can flesh out your story with more details.

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First rule of thumb Grab the reader with your best, most equitable reason for why your client should win.

Misstating Facts—Not Good Somehow, “misstating facts” doesn’t sound as evil as “lying.” But lying it is, and if you lie, you will be punished. “… some discussion of the brief submitted by respondents is in order. This court recently warned the bar that ‘[w]e expect and require that all appeals brought in this court … will be pursued in a manner meeting high standards of diligence, professionalism, and competence.’ … In the answering brief, CMC strenuously argues that Sobol affirmatively admitted and acknowledged in a statement of stipulated facts issued prior to the preliminary hearing that the term ‘Physicians Medical Center’ was ‘not capable of tradename [sic] or copyright registration and is in the public domain.’ This is a blatant misrepresentation of the stipulated facts. The supposed ‘admission’ [is in fact Sobol’s restatement of CMC’s position, not Sobol’s own position.] … While vigorous advocacy of a client’s cause is expected and encouraged, these representations transcend the outer limits of zeal and become

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statements of guile and delusion. In light of CMC’s disregard of the rules and professional standards established by this court, we have determined that the imposition of sanctions on respondents is warranted. See NRAP 38(b). Accordingly, CMC shall pay the sum of $5,000.00 to the Clark County Law Library Contribution Fund within thirty (30) days from the date of the issuance of this opinion, and shall promptly provide the clerk of this court with proof of such payment.” SOBOL v. CAPITAL MANAGEMENT CONSULTANTS, 726 P.2d 335 (Nev. 1986). The Federal Rules forbid lying, see F.R.Civ.Pro. 11, as do the rules of every other jurisdiction. For example, N.J. Rule 1:4-8 provides that every lawyer must certify that: (3) the factual allegations have evidentiary support or, as to specifically identified allegations, they are either likely to have evidentiary support or they will be withdrawn or corrected if reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support; and (4) the denials of factual allegations are warranted on the evidence or, as to specifically identified denials, they are reasonably based on a lack of information or belief or they will be withdrawn or corrected if a reasonable opportunity for further investigation or discovery indicates insufficient evidentary support. 42

Lying, in contravention of these rules, leads to sanctions. People—be they judges or juries—want to do justice. Explain to them why in your case justice favors your client. Use Easy-to-Read Language The second lesson is to use informal formal language. It is the difference between saying “This case is about a lie” and “The defendant Mr. Farmer knowingly and willfully misrepresented …” (By contrast, informal language would be something along the lines of “This f-ing defendant snookered the plaintiff developer.”) There are many ways to tell a story, but the one that grabs the reader is the one that will persuade. Remember to hit the high spots of your client’s story. You don’t need to put in every detail, unless it is relevant to a legal argument or is necessary to paint a picture. Second rule of thumb Use acceptable but informal formal language. Avoid Jargon

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One of the corollaries of using informal formal language is to speak plainly, without using jargon. You will undoubtedly have plenty of opportunity to “speak lawyer” when you discuss the law. But leave it out of your narrative legalese, medicalese, social workese, computerese, and the like. I have seen lawyers use these jargon phrases in narrating the facts of a case: • My client attempted to reach out to his opponent … (social worker talk) • Subsequent to the previous attempt to contact him … (lawyer speak) • My client has always been interested in interfacing with his business partners … (computer language) • The president always sought input from the board … (more computer speak) • We ask the court to grant our discovery requests to help shake out the facts of this matter … (financial industry language) • The ball is now in our opponent’s court … (sports speak) • Our opponent’s actions have caused a firestorm of criticism … (war language) • The defendant tried to make an end run around the rules … (sports again) I expect some readers will fret at my suggestion. What I see as jargon, others may see as vivid use of metaphors. I don’t deny that there are occasions when the judicious use of metaphor is compelling. But it should be used only

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on rare occasions. As Patricia M. Wald, Senior Appellate Judge on the D.C. Circuit, has said: The well-turned phrase in a brief can capture a judge’s attention, which tends to wane after 60,000 words of legalese; the surprising allusion can set her thinking along different lines…. Pepper your briefs or argument with relevant metaphors or quotations and I can guarantee the best ones will reappear in the judges’ opinions. But strained attempts at humor or passion usually end up embarrassing everyone. “19 Tips from 19 Years on the Appellate Bench,” Journal of Appellate Practice and Process, Winter, 1999. Third rule of thumb Use plain, jargon-free language. Remember, too, that using a reference or metaphor with which your readers are not acquainted is counterproductive. Not every judge has an interest in sports. Even using a well-known legal quotation, such as “I know it when I see it,” has its pitfalls. Your judge or panel members may not remember that line as Potter Stewart’s definition of obscenity in Jacobellis v. Ohio (1964). It is more persuasive to explain that there may be uncertainty when something is difficult to define, than to use the shorthand of “I know it when I see it” and leave your readers mystified.

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Keep It Simple The obverse of being obscure is using “suck up” language, where you know the judge will “get” your reference—quoting from a Sherlock Holmes novel when you know the judge is a Sherlockian, for example. Although you know that your reference won’t be lost on the judge, it is rarely a winning strategy. The judge will know you looked him up on the Internet and that you are trying to curry favor. Usually, this backfires. As a TV character once said, don’t try anything fancy. Fourth rule of thumb Use metaphors, allegory, and shorthand phrases very sparingly.

Elegant Writing Is Plain Writing Supreme Court Justice Benjamin Cardozo wrote elegant prose, because it was simple and direct. As judge of New York’s highest court, before ascending to the Supremes, he wrote a compelling story in his opinion in the case we all studied in law school, Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928). These are the facts as set out by Cardozo: Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for 46

another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues. No unnecessary verbiage, no slang, no jargon. Perfection! Keep Your Words In the Mainstream As I said above, in the second rule of thumb, the language you use must be “acceptable.” And as I also mentioned, that rules out the use of obscenity (for which you will probably be sanctioned) and the use of slang. So don’t use, as I did in the paragraph above, a phrase like “suck up language.” Even if your judge doesn’t sanction you, he won’t be amused. Of course, if your case is about the use of language, such as in a defamation case, and the 47

language is salty, you will of necessity be using obscene language. This is the only exception. There Are Always Exceptions Of course, if you are arguing about the use of purportedly obscene language for any reason, you will find yourself using the profanity in your brief. In Cohen v. California, Mr. Cohen was arrested for wearing a jacket that said “Fuck the Draft.” The Supreme Court reversed his conviction under a California statute forbidding the use of, essentially, vulgar language. After quoting the phrase that adorned Mr. Cohen’s jacket, Justice Harlan wrote: “… while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.” 403 U.S. 15, 25 (1971). Over forty years later, an intellectual property lawyer working for a porn producer, Cybernet Entertainment, wrote a brief in opposition to the patent office’s refusal to grant a trademark for the word “fuckingmachines.” His brief uses the word “fuck” fifty times in 22 pages. And he relies on Justice Harlan’s opinion to show that the examiner was out of touch with the times. There can be no better foundation upon which to build Cybernet’s key point in this case than Justice

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Harlan’s recognition of the requirement that government remain neutral in matters of morality, vulgarity, and content-based restrictions. Nevertheless, the TTAB need not reach such lofty arguments in order to hold in favor of Cybernet, since the standard for determination that “fuckingmachines” is immoral or scandalous has not been met. The Examiner has erred on three grounds: 1) The term “fuck” or “fucking” does not rise to the level of condemnation required under Section 2(A), 2) the Examiner failed to apply the requirement that the mark must be examined in the context of the relevant marketplace, and 3) the Examiner’s evidence has been rebutted with superior evidence. A. AS A FACTUAL MATTER, AMERICA NO LONGER FINDS “FUCKING” TO BE IMMORAL OR SCANDALOUS. Under Section 2(a), to be considered “scandalous,” a mark must be “shocking to the sense of truth, decency or propriety; disgraceful; offensive; disreputable; … giving offense to the conscience or moral feelings; … [or] calling out for condemnation,” in the context of the marketplace … In the year 2007 (in fact well before) the fact is, “fucking” can no longer be considered to be scandalous or shocking. Brief for Appellant, In re Application of: CYBERNET ENTERTAINMENT, LLC: Serial Number 78/680513, Filed: July 28, 2005 For: FUCKINGMACHINES 49

You can read the briefs at randazza.files.wordpress.com/…/in-re-cybernet-briefof-appellant.pdf Keep the Narrative Focused You should keep your sentences (and your paragraphs) short. As I mentioned above, you are more likely to use proper punctuation if your sentences are short. I cannot emphasize enough how important it is to use proper punctuation. There are many examples in writing courses of the havoc you can wreak by not properly punctuating. My favorite example is also the title of a book: Eats, Shoots & Leaves, by Lynne Truss. Remove the punctuation from the title, and we’re talking about a marsupial whose diet is shoots and leaves. With punctuation, we’re talking about a rude hit man who eats and runs: eats, shoots, and leaves. Fifth rule of thumb Keep your sentences and paragraphs short. Use the Active Voice You should also strive, to the extent possible, to use the active voice. You won’t always be able to accomplish this, but try. Your story will be more compelling if it has people doing

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things. The passive voice gets old quickly and is much less interesting to read. Sixth rule of thumb Use the active voice where possible. In case you have trouble differentiating between the active and the passive voice, here is an example of the difference. Passive: My client’s money was stolen by the bank. Active: The bank stole my client’s money. Tell Your Story from the Beginning As I mentioned above, you want to begin your story with the most compelling point you have to convince the reader to rule in your favor. But then you must tell the whole story. Every story has a beginning, a middle, and an end. Make sure you hit all the salient points of your story—how the plaintiff and the defendant got into this mess. At the end of your story, repeat what you said at the beginning—the compelling reason why your client should prevail. Now that you have written your story, make it shorter. Remove excess verbiage. If you have used any “mean” words about your opponent, remove them. If you have used any exaggerated language to describe your client’s

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position (“It is clear that …”), rephrase it. Your reader does not want to be told what is clear and what is not. And you want your reader to come to the realization that your story is the more compelling narrative on his own. Signposts, like “it is be yond dispute,” have a counterproductive effect on judges. In short, don’t use hyperbole. Seventh rule of thumb Show the court that your story is the best, don’t tell the court that it is. If you are having a hard time writing clearly, make your sentences short. Write about one fact per sentence. Be sure that each sentence has a noun and a verb and that they agree. Doing so will focus your mind on what’s important, ensure that your grammar is correct, and render your prose intelligible. Courts Sanction Bad Writing The courts have begun to sanction lawyers who can’t write. I find it mind-boggling that lawyers have no qualms about submitting drivel to the court. In an attempt to reduce the number of poorly written briefs, some courts have actually begun quoting unintelligible writings. I have mentioned this lawyer’s poor writing above. His appellate briefing was characterized by a reliance on irrelevant, conclusory, and often incoherent

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arguments of which the following is a representative example: “Plaintiffs claims were not ‘intelligible’—no ‘needle in a haystack’ as Appellees’ claim.” Stanard v. Nygren, 658 F. 3d 792 (7th Cir. 2011). As an additional “benchslap,” the court quoted in a footnote one of the lawyer’s 345-word sentences from the complaint in the case. The court went on to sanction the attorney for his poor performance and report him to the state ethics board. And woe betide the attorney who makes unprovoked attacks against the judiciary while writing a crappy brief: Sanches and her attorneys launched an unjustified attack on Magistrate Judge Stickney. The main portion of the argument on this point, contained in Sanches’s opening brief, reads verbatim as follows:

The Magistrate’s egregious errors in its [sic] failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur [sic] of the assignment to [sic] Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches’ Section 1983 claims and summarily dismissed them without analysis or review. Because a magistrate is not an Article III 53

judge, his incompetence in applying general principals [sic] of law are[sic] extraordinary. (Footnote omitted.)

These sentences are so poorly written that it is difficult to decipher what the attorneys mean, but any plausible reading is troubling, and the quoted passage is an unjustified and most unprofessional and disrespectful attack on the judicial process in general and the magistrate judge assignment here in particular. The court went on in a footnote to pull apart the attorney’s writing: Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word “principals” should have been “principles.” The word “vacatur” is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (“incompetence”) and a plural verb (“are”). Magistrate Judge Stickney is referred to as “it” instead of “he” and is called a “magistrate” instead of a “magistrate judge.” And finally, the sentence containing the word “incompetence” makes no sense as a matter of standard English prose, so it is not reasonably possible to understand the thought, if any, that is being conveyed. It is ironic that the term

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“incompetence” is used here, because the only thing that is incompetent is the passage itself. Sanches v. Carrollton-Farmers Branch Independent School District, No. 10-10325 (5th Cir. 2011). Ouch! You want to write a good, persuasive brief. You want to write a compelling brief. Tell the court your client’s story as if you were talking to a friend over coffee. Tighten it up, check your punctuation, and make sure your grammar is correct. Then you will have the factual opening of your brief. Strategizing Citations to the Record Just as you want to cast your facts in a good light, you will want to do the same with the record. This does not mean cherry-picking only the good parts of testimony or contract language. It does mean finding support in the record for your assertions and anticipating and defusing your opponent’s attempts to do the same. Don’t ignore what you don’t like; deal with it. In some cases, you will decide not to attach anything to your brief. As an example: a brief in support of a motion to dismiss the complaint on the grounds that your opponent has failed to state a claim. Here, the complaint itself is the be-all and end-all of your analysis, and apart from attaching the complaint for ease of reference, you will have nothing else to attach. If you do pile on attachments, it will make it appear to the court that there is a reason for the

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complaint, that there is a claim stated, and that you’re arguing too much. Similarly, with a brief supporting a motion for summary judgment, your record will be limited, since the essence of your argument is that there are no material issues of disputed fact. By contrast, if you are resisting a motion for summary judgment, you will want to pile on the documents to show that many facts are in dispute.

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Chapter Six

Find and Argue the Law You know what your client wants in this litigation and also what the goal of your brief is. Now you must determine whether the law supports your goal. When I was a law clerk at a national firm back in the 1970s, we were taught that the senior partner is always right. In other words, if he (and it was only “he” in those days) said stand on your head, we had to assume there was a good reason and just do it. So as obedient researchers of the law, when a senior partner told us to find the case law that supported our client’s position, it was unacceptable to come back empty-handed. One partner in particular was known for screaming at any clerk who dared show up with a reported opinion that “was similar” to the client’s case. “I know there are cases out there that are IDENTICAL!” he’d shout. As I became more experienced, I realized that this was not, in fact, the truth. His temper tantrums notwithstanding, you cannot magically find a case “on all fours” with your client’s. And if you are going to take a legally unsupported position in your client’s case, you must disclose the lack of supporting law and craft an argument for a new law, or for a change in the law. You cannot 57

blindly move forward pretending that the law supports you. “[E]very lawyer must do the necessary work to find the law before filing the brief. It is not acceptable to make an assertion of law and hope that it will turn out to be true.” Thornton v. Wahl, 787 F. 2d 1151 (7th Cir. 1986). Think of it as a law school exam, or even the bar exam (essay portion). Spot the issues! And then after you’ve figured out the legal issues, go find the law of the forum you’re in that supports what you want. How will the case law support your client’s goals? It will be unusual for you to find an opinion directly on point for your case. The facts underlying an opinion may be distinguishable from your case. Your duty as an advocate is to show how the cases you find are supportive of your position or, if the cases are not helpful to your client’s position, show how they are irrelevant because of the factual underpinnings. Or perhaps show that other, more enlightened jurisdictions disagree with the law in your forum. So far, what I’ve said isn’t big news. We all learned about legal research and argument in law school. And yet, even experienced lawyers don’t always get it right. They make one or both of the two biggest mistakes you can make while incorporating the legal arguments into your brief: 1. Saving your best argument for last and 2. Misstating the holding of a case. 58

Mistake number one is stylistic, but it will have an effect on the substance of your argument. Mistake number two is ethically improper and will cause a court to dislike your argument and inevitably to punish you. I will deal with the ethical issue first. Misstating the Holding of a Case Misstating the holding of a case, or misrepresenting the effect of a statute, is an invitation to a judge or panel to sanction you. And the sanctions can be pricey. Additionally, once a judge or law clerk finds that you have misstated the holding of a case, your credibility in that court is gone forever. You might think that a lawyer who is stuck with bad precedent would be the one tempted to misstate the law. While that is sometimes the case, I have litigated against lawyers where the law is either neutral or supports their position, and they still misrepresent the law. I don’t know why they do it. Maybe they just think they are smarter than everyone else. You are not that kind of lawyer. If the law is bad, argue for changing it. Don’t lie to the court. In a perfect world, you will find a case that is on all fours with your case. Your plaintiff says the light was green for him, and the defendant ran a red light. You find a case where the plaintiff says the light was green for him, and the defendant ran a red light. You want to argue that the traffic camera that caught the accident on tape is

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irrefutable proof that the defendant was negligent, and you are entitled to summary judgment. The case you found has exactly the same legal issue, and it comes out in your favor. Slam dunk! Don’t Misstate the Law … Appellant’s brief says … “[a]ccording to Illinois Supreme Court rules, a Motion for Stay automatically stays judgement [sic] until such time as a ruling is made on the Motion for Stay.” … Her brief does not cite any rule for this proposition, but it cites Ill.Rev.Stat. ch. 110 § 2-1305 for the statement that “once a Motion for Stay was filed, all proceedings were stayed pending a decision on the Motion for Stay.” We publish this opinion to remind counsel that they may not make assertions of law for which there is no support…. The argument that a motion for a stay automatically stays a judgment pending the appellate court’s decision is preposterous…. In sum, this appeal rests on a serious misstatement of state law. It is hard to imagine that a lawyer could advise a client to defy an outstanding judgment on the ground that an application for a stay had been filed but had not been granted, or that a lawyer could inform us—without a shred of authority—that in Illinois an application for a stay has the effect of a stay itself. We do not want to discourage vigorous advocacy, but an advocate must represent his client within the existing structure of the

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law, and not some imagined version of it…. Mrs. Thornton’s presentation also cannot be described as a reasoned request for a change in the law. Her brief misrepresents existing law; she does not accurately describe the law and then call for change…. Rule 11 requires counsel to study the law before representing its contents to a federal court. An empty head but a pure heart is no defense. The Rule requires counsel to read and consider before litigating. Counsel who puts the burden of study and illumination on the defendants or the court must expect to pay attorneys’ fees under the Rule…. Ordinarily we impose attorneys’ fees on the party, leaving party and lawyer to settle accounts. But we do not suppose that the representations about state law were approved by Mrs. Thornton personally; although she is responsible for pursuing this litigation, she has received bad legal advice. We therefore impose part of the award on counsel personally. Mrs. Thornton and her counsel must pay double costs and the reasonable attorneys’ fees incurred by the defendants. Counsel must pay half of the bill personally….

Thornton v. Wahl, ibid. How often does that happen? In my experience, pretty rarely. You are looking for a case that is similar. Or perhaps you are looking for two cases whose holdings 61

you can combine. Sometimes, you will find a case that stands for the flip side of what you’re looking for, and if the facts are distinguishable, you can use it to argue for your client’s position. Federal Rule Civ. Pro. 11(b)(2) makes it clear that a bad faith effort to cite case law in a way that is misleading is a violation of the federal rules: The Form of Citation Differs by Jurisdiction Forget what you learned in law school about proper citation form. What’s important in the real world is what your local court prefers. These preferences may be embodied in rules: When available, initial citations must include the volume and initial page number of the North Western Reporter in which the opinion is published. The initial citation of any published opinion of the Supreme Court released on or after January 1, 1997, contained in a brief, memorandum, or other document filed with any trial or appellate court and the citation in the table of cases in a brief must also include a reference to the calendar year in which the decision was filed, followed by the court designation of “ND,” followed by a sequential number assigned by the Clerk of the Supreme Court. A paragraph citation should be placed immediately following the sequential number assigned to the case. Subsequent citations within the brief, memorandum or other document must include

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the paragraph number and sufficient references to identify the initial citation. N.D. R. CT Rule 11.6 (b). Or see how the Illinois Supreme Court requires cases to be cited: Citation of Illinois cases filed prior to July 1, 2011, and published in the Illinois Official Reports shall be to the Official Reports, but the citation to the North Eastern Reporter and/or the Illinois Decisions may be added. For Illinois cases filed on or after July 1, 2011, and for any case not published in the Illinois Official Reports prior to that date and for which a public-domain citation has been assigned, the public-domain citation shall be given and, where appropriate, pinpoint citations to paragraph numbers shall be given; a citation to the North Eastern Reporter and/or the Illinois Decisions may be added but is not required. Citation of cases from other jurisdictions that do not utilize a publicdomain citation shall include the date and may be to either the official state reports or the National Reporter System, or both. If only the National Reporter System citation is used, the court rendering the decision shall also be identified. For other jurisdictions that have adopted a public-domain system of citation, that citation shall be given along with, where appropriate, pinpoint citations to paragraph numbers; a parallel citation to an additional case reporter may be given but is not required. Textbook citations shall include the date 63

of publication and the edition. Illinois statutes shall generally be cited to the Illinois Compiled Statutes (ILCS) but citations to the session laws of Illinois or to the Illinois Revised Statutes shall be made when appropriate. Ill.S.Ct. Rule 6. The way citations are used in your jurisdiction may be embodied in practice, as opposed to rules of procedure. Just be sure you know what form of citation to use in the locale where the brief will be filed. (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: … the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law. Most state courts have similar or identical rules. See, for example, New Jersey Court R. 1:4-8: Frivolous Litigation (a) Effect of Signing, Filing or Advocating a Paper…. (2) the claims, defenses, and other legal contentions 64

therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law…. I admit to being surprised that lawyers in this digital age think they can lie with impunity. And I am surprised that lawyers need rules to tell them not to lie and that there are consequences if they do. So don’t make this mistake. You will undermine your client’s cause. And you will most likely be punished. Once you have your ethics on straight, you can deal with the stylistics of arguing the law. Saving Your Best Arguments for Last When I was a newspaper reporter, I learned not to bury the lead (or as some newspapers now spell it, the “lede”). That is, I learned to state at the very beginning of an article the most important point of the article. I answered for the reader the burning question: why are you telling me this? Just as with drafting your factual statement, you do not want to save the best for last. You want to lead with your strength. Although you will want to explore every possible legal theory that supports your client’s position, inevitably only one provides a strong rationale for your side of the case. And so you will begin the argument section of your brief citing those opinions that stand for the proposition you have chosen as your winner.

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Leading with your strength is also important as a means of fitting within court guidelines on the length of briefs. Because you will have a limit on the number of pages at your disposal, you may not have room to fit in every single theory supporting your position. You will have to cull out those arguments that are space wasters and not all that helpful to your cause. Most importantly, judges and law clerks expect you to put your best arguments first. If you “save the best for last,” the decision makers may not even get to the “best” arguments. I have been guilty of “burying the lede” in my remote past. There are rhetorical flourishes we learn that are hard to resist. For example, who hasn’t used this formulation: Proposition A is true. Proposition B is true. But most importantly, Proposition C is true. The lead up is like a drum roll, after which—ta-dah!—you make your point. Don’t do this. If Proposition C is the most important one, put it first. Judges are not all-knowing beings, with complete familiarity with every precept of law. You must bring the court’s attention to the relevant opinions. You cannot expect the court to do your research for you. (However, you can be sure that the judge or the judge’s clerk will check to ensure that your citations are not misleading.) If you have your choice of opinions to cite, here is a rough guide, in descending order of persuasiveness, to which opinions are preferable.

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1. A Case on All Fours: A case factually identical to your client’s, with the outcome the same as the one you are urging, decided by the reader of your brief and upheld on appeal. As I mentioned above, this is incredibly rare. If you can’t find it, don’t panic. Because there may be a case on all fours decided by a member of the bench to which you are arguing and affirmed on appeal. 2. A Similar Case: Even if you can’t find a case on all fours, you may find a case in which the facts are sim ilar enough for you to argue that the opinion serves as controlling authority in your jurisdiction. 3. Persuasive Authority: A case identical or similar to your client’s, with the desired legal result, decided in a neighboring jurisdiction or a jurisdiction with a highly regarded jurisprudence. 4. Nothing: In the absence of an opinion that is supportive of your client’s case, you will have to either argue vehemently for an extension or for a change in the law, and/or you will have to factually distinguish the opinions that exist from your case. You may find dictum in an opinion that helps you, or language in a dissent that supports your position. Use the reasoning behind the dictum or the dissent to help craft your argument, and of course cite the opinions from which it came, clearly acknowledging that the statements of the court are not part of the case’s holding.

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There is also the conundrum of how to handle the unreported (also known as unpublished) opinion that is incredibly helpful to your client. Once again, check the rules to determine whether you can mention this case in your brief. In some states, you may cite the case as long as you attach a copy to your brief. In others, by contrast, you cannot mention an unreported case. Are unpublished opinions precedential? They are in Delaware state court. They are not so in Idaho. Other state courts will allow unpublished opinions to be considered as persuasive authority. Check your rules! If you find an agency decision that is helpful to your case, can you cite it? Is it precedential, or persuasive? Once again, the rules will give you the answer. You may find that instead of a dearth of case law to cite, you have too many supporting cases. Don’t use them all. I have received briefs with string cites that go on for pages. This is overkill. It is unnecessary. If you must crow about your good fortune, do so with a citation to an opinion that string cites supporting law: “For the many cases that follow this rationale, see Roe v. Doe and the cases cited therein.” This may be a statement of the obvious, but I’ll mention it anyway: be sure to check the history of every case you rely on. There is nothing worse than discovering that one of them has been reversed. Check the day before you submit your brief, because the law has a way of changing rapidly when you least expect it.

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In fact, you may file your brief and, the very next day, an opinion comes down affecting your arguments or reversing a case upon which you rely. Every jurisdiction has its own rules for this situation. Do you send a letter to the court citing the new case without argument? Some jurisdictions require you not to argue the pertinence of the case. See, for example, Florida Rule of Appellate Procedure 9.225: “Notices of supplemental authority may be filed with the court before a decision has been rendered to call attention to decisions, rules, statutes, or other authorities that are significant to the issues raised and that have been discovered after the last brief served in the cause. The notice shall not contain argument, but may identify briefly the issues argued on appeal to which the supplemental authorities are pertinent if the notice is substantially in the form prescribed by rule 9.900(j). Copies of the supplemental authorities shall be attached to the notice.” Do you seek leave to re-submit your brief? Partly your decision on how to handle this will be the rules in your jurisdiction, and partly it will be a tactical decision. FRAP 28 deals with late-breaking case law this way: “Citation of Supplemental Authorities. If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter

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must not exceed 350 words. Any response must be made promptly and must be similarly limited.” Be organized about your arguments. Start with a summary of your main points. Then take each point and expand on it in a section devoted to that point. Use an outline form for your arguments: numbering and lettering section heads will enable you to keep your arguments pithy and to be in control of the pace of the discussion. An outline form also will enable your readers to keep your arguments straight. When There’s Really Nothing Out There Clients may come to you with issues that have never been considered by any court before and for which there is no precedent. In such a case, you will have to argue by analogy, using as your base holdings of cases with similar issues. As an example, two baseball fans argued over ownership of a baseball hit by Barry Bonds, the first ball player to hit 73 home runs. One fan caught the ball, a crowd descended upon him, he dropped the ball, and it was ultimately picked up by a second fan. Of course, the dispute over ownership of this extremely valuable baseball wound up in court. And there was no precedential case law to help the judge decide what to do. At least the parties agreed that the central issue was who had possession of the ball. The parties cited

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analogous cases involving dominion and control over sailing vessels salvaged after a wreck and dominion and control over animals hunted as prey. The court discussed the rules in these cases, making many cogent points along the way, but ultimately punting by putting aside the law and embracing equity—Judge Kevin M. McCarthy split ownership of the ball fifty-fifty between the parties. Popov v. Hayashi, #400545, Superior Court of California, San Francisco (2002). You can receive guidance—or in some cases, explicit direction—about how to organize your legal argument in many court rules governing the submission of briefs. Also, as I mentioned above, you must properly cite the opinions on which you rely. And each jurisdiction has its own rules as to the proper form of citation. So, as always, check the rules. Be sure to re-check them every few weeks, because some issuing courts are profligate with rule changes. These are general guidelines for making your arguments in an opening brief. However, if you are responding to a brief, your concerns will in addition include disputing the applicability of the law your opponent cites and/or your opponent’s interpretation of the law. There are special issues that arise in responsive briefs, and I will discuss them in the next chapter.

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Chapter Seven

The Responsive Brief I have almost never, in my thirty years of practicing law, received a brief from an opposing counsel that sets out the statement of facts in a way that puts my client in a good light. The facts may be recited correctly, but inevitably the flavor of those facts will favor the other side. As a result, even if I agree with the recitation of facts, and keeping in mind that I don’t want to waste the pages I’m allowed in my responsive brief, I will at least briefly recite the facts of the case with an emphasis on the correctness or goodness of my client. Responding to the law cited in the opening brief is a matter of logic and creativity. Is your opponent’s interpretation of the holding of a case different from yours? Are the facts of the case on which your opponent relies sufficiently different from the facts of your case to make the holding inapposite? Have you found a completely different line of cases that supports your client’s position? The organization of your responsive brief will in large part be guided by the organization of the brief to which you are responding. Your factual statement will come first. Then you will take the arguments made by your opponent one at a time, in order, and show why they 72

are wrong. You will either reinterpret the opinions cited by your opponent or supplant them with more relevant case law. Of course, as always, check the rules. There may be special rules relating to responsive briefs, particularly in relation to length and organization. Also, note that one jurisdiction’s “responsive brief” may be another’s “answer brief.” See, for example, Florida Rules of Appellate Procedure, Rule 9.210: “In addition to briefs on jurisdiction under rule 9.120(d), the only briefs permitted to be filed by the parties in any one proceeding are the initial brief, the answer brief, a reply brief, and a cross-reply brief…. The initial and answer briefs shall not exceed 50 pages in length, provided that if a cross-appeal has been filed, the answer brief/initial brief on cross-appeal shall not exceed 85 pages.” In Georgia, “Briefs shall be limited to an initial appellant’s brief, a responding appellee’s brief, and a reply brief of the appellant …” Georgia Rules of Appellate Procedure, Rule 24 (a). It doesn’t matter what your local jurisdiction calls it. What matters is that you call your brief by the correct name for the jurisdiction you are in. Check the rules for style, length, and organizational requirements. And be sure that you check a judge’s or court’s standing orders and local rules on the topic of briefs.

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As with everything else in the law, the rules should be your bible. Because usually the rules set out all the topics you should cover, and in what order. Believe it or not, it is much easier to respond to a wellwritten brief than it is to a terrible brief. That’s because with a well-written brief you know the point your opponent is trying to make in the brief, and you understand your opponent’s legal arguments. Because the arguments are made in an organized manner, your rebuttal can follow the organization of your opponent and therefore also be organized. But what if the brief is incomprehensible? The writers of these briefs are the lawyers whom judges sanction, and they are the target of diatribes about the poor writing habits of today’s lawyers. I’ve given some examples of poor briefs above. Jeffrey Berger, a Washington, DC, lawyer, calls these bad briefs “Hutz briefs.” “The other side’s brief arrives. A quick glance at the first few pages hints at the serious briefing defects that lie ahead. There is no table of contents. There is no table of authorities. There are, in fact, no authorities. Or, there are authorities, but they are statutes from other jurisdictions and century-old precedents that are outdated, overruled, and completely irrelevant. The disjointed prose and indecipherable legal argument are accompanied by inapt Latin phrases decorated with the holy trinity of emphasis—bold, italicized, and underlined. The sentences that are comprehensible are laden with factual fabrications and

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distortions of the law. Structure, theme, and internal consistency departed early if they ever showed up. “This unimpressive document is a ‘Hutz’ brief: It is the type of brief that Lionel Hutz, the ne’er-do-well attorney from The Simpsons, would have written had the show’s brain trust ever decided to produce an episode about legal writing. (See, e.g., ‘Judge: Mr. Hutz, We’ve been in here for four hours. Do you have any evidence at all?’ ‘Hutz: Well, Your Honor. We’ve plenty of hearsay and conjecture. Those are kinds of evidence.’) Almost every lawyer has come across a Hutz brief at some point. These briefs are produced by litigants appearing pro se, by competent lawyers who are short on time, and by other lawyers who exhibit deficits in the legal writing department.” “The Hutz Brief,” Appellate Practice Newsletter (Section of Litigation), Winter 2012, Vol. 31, No. 2. (© 2012 American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.) How do you respond to a Hutz brief? Jeff Berger points out that your first instinct will be to move to strike the damn thing. This may not be the best approach, however. Judges and courts do not much like motions to strike briefs. Florida Appellate Judge Chris Altenbernd of the 75

Second District said in an interview that judges don’t like motion practice. “By and large,” he said, “appellate judges hate cases that get into motion wars. You want to get into the merits of the case and resolve it.” (Quoted in March, 2006, Vol. 80, No. 3 of the Florida Law Journal.) Making Order Out of Chaos As I’ve mentioned above, a failure to cite the law correctly, or even at all, is one element of a bad brief. It makes judges apoplectic, and it makes it very hard for you, the advocate, to respond. “When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it…. The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened …) The ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.” GONZALEZ-SERVIN v. FORD MOTOR CO., 662 F.3d 931,935 (7th Cir. 2011). In the Gonzalez case, the attorney for the appellant failed to cite the relevant precedent. The attorney for the respondent did what you will have to do in a similar situation—argue the relevant law even though your opponent ignored it.

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(actual illustrations from the Gonzalez decision) While having your opponent’s lousy brief thrown out is satisfying, it most likely won’t advance the case. Judges may give the brief writer another chance—or even two more chances—to follow the rules, to write persuasively, and to cite relevant cases. After all, the judge will think, the lawyer is the failure, not his client. So rather than penalize the client for a bad brief, the court will make allowances. And then your client’s case won’t be resolved .

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until your opponent has succeeded at writing a better brief, or has failed miserably yet again. If you are not going to file a motion to strike, you will file a responsive brief. This is not an easy task when you are responding to a bad brief. I can attest to the difficulty of trying to respond to a poorly reasoned, poorly written brief. I have also felt disgusted that I had to make my opponent’s case for him because he couldn’t explain what he wanted. But if your goal is to persuade the court of your client’s rightness, which is of course your aim, then you will first have to clean up your opponent’s messy argument so that you can demonstrate how incorrect it is. As Jeff Berger says, “In general, the less clear the Hutz brief is about the legal questions presented, the greater the necessity that you include a brief paragraph describing the legal context before stating the issue(s) presented. The rest of the brief should follow suit: jurisdictional statements, descriptions of the proceedings, and factual recitations should be as robust as their Hutzian counterparts are lacking.” Because you will have to spend pages of your responsive brief doing the work the appellant should have done in the main brief, you may be tempted to ask the court for leave to file a longer brief. You should resist this temptation. If at all possible, you should accomplish your task—writing your brief in response to your feckless opponent’s inchoate ideas—within the guidelines of the rules.

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Motions to Strike Briefs Make Judges Mad “The Federal Rules of Appellate Procedure provide a means to contest the accuracy of the other side’s statement of facts: that means is a brief (or reply brief, if the contested statement appears in the appellee’s brief), not a motion to strike. Motions to strike sentences or sections out of briefs waste everyone’s time. They go to a motions panel, which does not know (and cannot efficiently learn) which statements are accurate depictions of the record and, if erroneous, whether the error is legally material. If the motions panel defers decision to the hearing on the merits, as was done here, then the motion does nothing except increase the amount of reading the merits panel must do, effectively giving each side argument on top of the word limit set by Fed. R. App. P. 32. Motions to strike words, sentences, or sections out of briefs serve no purpose except to aggravate the opponent—and though that may have been the goal here, this goal is not one the judicial system will help any litigant achieve. Motions to strike disserve the interest of judicial economy. The aggravation comes at an unacceptable cost in judicial time.” Redwood v. Dobson, 476 F.3d 462, 471 (7th Cir. 2007). You of course want your responsive brief to be persuasive, so all the same tips for writing the main brief apply here. I want to emphasize that calling your opponent an idiot or a poor excuse for a lawyer is a terrible idea, as much as you’d like to do so. It is so much more satisfying to have the court call your opponent those 79

names. And if you write a clear and comprehensive responsive brief, the court most likely will do just that. If you are the moving or appealing party, you get first licks in telling your story. Your opponent gets to respond. Do you get another crack at the court after that? It depends, of course, on the rules and on the judge or court in which you are litigating. Most jurisdictions allow reply briefs to respond to response briefs. How about a sur-reply—that is, a reply to the reply brief? Believe it or not, some jurisdictions allow this seemingly unlimited briefing process. When does it end? The purpose of a sur-reply is to respond to new matter brought up in the reply brief. If the moving party/ appellant raises new facts or legal arguments in the reply brief that were not raised in the opening brief, in fairness the opposing party should be allowed to respond. Surreplies are not favored by the courts (in fact, most jurisdictions specifically disallow them), but in the appropriate situation, the court will grant leave to file a sur-reply. How do you seek leave to file another brief? This may be a matter of rules or local practice, but in general the best method is to prepare and file a sur-reply and a motion to file a sur-reply together. This way, you can demonstrate to the court that your opponent has raised issues for the first time in his reply brief and that you have a disagreement with your opponent’s position.

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In some cases, a party will seek leave to file a sur-reply and then the opponent will seek to file a sur-sur-reply. In my view, this kind of war of words is unnecessary. Less is more—unless your opponent is misstating the law or the facts or raising new issues for the first time. Be aware that there are some judges who will grant leave to file endless briefs, while making it clear that the briefs don’t impress him. For example, US District Judge P. Kevin Castel granted a litigant’s letter request to file a sur-reply and, even though it wasn’t requested, granted the litigant’s opponent a right to file a sur-sur-reply. He added, however, “The clients should reign in their lawyers for this out-of-control paper pushing.” Avocent Redmond v. Raritan Americas, Document 103, Case No. 1:10-cv-06100-PKC (S.D.N.Y. 2012). Only a very thickheaded lawyer would ignore the judge’s obvious distaste for further briefing. Dirty Tricks Sometimes opposing counsel can be scum. In fact, even lawyers who consider themselves ethical often play hardball with deadlines. So you may be the recipient of a fifty-page brief on a motion for summary judgment, with attachments, at 5:30 on a Friday night on Easter weekend. You must be vigilant, even though you’re steaming, either to respond by the deadline imposed by the rules or to seek an extension of time. The rules can be your friend. Often, a filing deadline for a responsive brief can be modified without

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involving the judge, and even without the consent of your opponent: “The motion day [also known as the ‘return day’] of a dispositive motion may be adjourned once by a party opposing the motion, without the consent of the moving party, the Court, or the Clerk.” See D.N.J. Local Federal Rule 7.1. The rule goes on to provide that you invoke the provisions of this rule by sending a letter to all parties, the court, and the clerk informing them that under this rule you are rescheduling the return day. In the absence of such a great and helpful rule, you will have to suck it up and either respond to the motion within the time frames set out in the rules or seek an extension. Remember that in most jurisdictions, you can only seek an extension before the expiration of the response time. Also remember—what goes around comes around. A lawyer who dumps a brief on you should not expect any future courtesy from you.

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Chapter Eight

Lower Court/Appellate Differences

Court

While the stakes may be higher at the appellate level, the same general principles for brief writing apply to both the appellate and the lower courts. The bible for the formal requirements is still the court’s rules. You will find in the rules all you need to know about what you must put in the brief, what format the brief should be in, how many copies the court wants, how long your brief should be, and what kind of factual support you will need for your assertions (appendices, the record, documents, and the like). Do you need a jurisdictional statement? Do you need a statement of facts? A table of cases? A table of contents? The rules will tell you. There is a difference, however, in emphasis depending on whether you’re briefing a motion or an appeal. In the lower courts, the parties in a motion contest are on a level playing field. In the appellate courts, the winner below is the appellee, and being the appellee is a distinct advantage. The appellate judges know that your client was able to persuade a fact finder that your cause was just. That’s a leg up for an appellee.

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And as Andrea Ambrose, a California lawyer, has written persuasively: “The standard of review is perhaps the appellee’s biggest advantage on appeal because the appealed judgment or order is presumed to be correct, until the appellant proves otherwise. That means any ambiguity in the record is resolved in favor of the appealed judgment or order, and when the record is silent, an appellate court never speculates that trial court error occurred.” (“Making the Best of Being an Appellee,” Litigation, Vol. 38, No. 3 ©2012 American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.) A vast majority of civil cases are affirmed on appeal. This reflects two factors: the standard of review, which favors the appellee, and the appellate courts’ deference to the lower courts and to juries. Unless there were egregious errors made in the trial or in the reasoning of the judge below, an appeal is yours to lose. What if there were errors made below? You have two lines of attack as the appellee: there were no errors, and if there were errors, they were harmless. (You may remember the late, great Irving Younger’s classic formulation: I don’t have a goat. If I had a goat, he couldn’t have eaten your cabbages.) As Andrea Ambrose writes, you may also be able to make use of the law on standard of review: “There are 84

three general standards of appellate review: substantial evidence, abuse of discretion, and de novo review. The applicable standard of review is determined by the nature of the challenged trial court action and the issues raised on appeal. When either the substantial-evidence or the abuse-of-discretion standard of review applies, the appellee is at a distinct advantage over the appellant because all presumptions tilt in the appellee’s favor. When the appellate court applies the de novo standard of review, however, the appellant and appellee are on equal ground. It is important to keep the standard of review in mind at all times and frame your arguments accordingly.” So far, this is all good news for appellees. But not so good for appellants. Knowing that you have an uphill battle to convince an appeals court to reverse an adverse result for your client, do you want to take the time and money of your client to take an appeal in the first place? This may come as a shock, but it is true: many clients are so caught up in their own case that they don’t think clearly about either the original action or the wisdom of an appeal. You as the lawyer should be the voice of reason when you know that your client’s case doesn’t belong in court. You may not have the opportunity to stop a client from finding a lawyer who will bring a frivolous lawsuit, but if the client comes to you for help in bringing a frivolous appeal, you should stop him in his tracks. You may have read that the Fifth Circuit Court of Appeals affirmed a lower court’s dismissal of a wannabe cheerleader’s lawsuit. The court “benchslapped” the client and the lawyer in the very first paragraph: “Samantha 85

Sanches appeals summary judgment on her claims of sex discrimination and retaliation under 20 U.S.C. § 1681(a) (‘title IX’) and 42 U.S.C. § 1983. Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.” Sanches v. CarrolltonFarmers Branch Ind. Sch. Dist., No. 10-10325, slip op. at 1 (5th Cir. July 13, 2011). Sometimes, you have no choice but to take an appeal. Your client may demand it, and you don’t believe the appeal is frivolous. You may believe that the result below was a travesty of justice. Common sense, however, may make an appeal unappealing. Appeals are expensive and have a low probability of success. I once represented a plaintiff who obtained a jury verdict for $500,000; the defendant appealed it—twice—to the Third Circuit Court of Appeals, and by the time the judgment was affirmed, accrued interest on the judgment was over a million dollars. So were the defense’s legal fees. You must ensure that your client understands both of these realities. After taking the expense and low probability of success into account, if you do take an appeal, use the same tactics in your brief that I have discussed above. Lead with your strength. Introduce your brief with a summary of why your client should win, whether it’s on the law or the facts. Lay out your client’s version of the facts. Explain what errors were made in the court below. And don’t think that more is good. In fact, less is more. Only bring up issues on 86

appeal that you truly believe have a chance of winning you a reversal. And as in all briefs, lead with the strongest issue first. Do not use hyperbole, do not rant about the stupidity of the court or of the jury. Judges are human. If you overdo the outrage in your brief, they will believe that you have no winnable issues. “Most appellate judges reading this type of hyperbole would immediately assume the appellant cannot make its case on the merits,” writes Larry A. Klein, a former appellate judge and now a lawyer in Florida. (“The Evolved Appellate Brief,” Litigation, Vol. 37, No. 1) You harm your client’s cause, and you risk sanctions. For example: [P]etitioners’ briefs … are replete with unfounded accusations impugning the integrity of the court of appeals panel that heard the cases below. These accusations include allegations, both direct and indirect, that the panel intentionally fabricated evidence, intentionally misstated the holding of a case, and acted with improper motives. Further, petitioners’ briefs are otherwise disrespectful of the judiciary. Accordingly, we strike petitioners’ briefs as containing irrelevant and scandalous matters in violation of rule 24(k) of the Utah Rules of Appellate Procedure, affirm the result reached by the court of appeals in each case, and assess attorney fees against petitioners’ counsel.

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Peters v. Pine Meadow Ranch Home Association, 151 P.3d 962 (Utah 2007). The Utah Supreme Court declined to hear the case on the merits because of counsel’s unrestrained hyperbole—a shame because if the briefs had been considered, the petitioners might have succeeded. And again because judges are human, even appellate judges, you want to make the court want to do justice for your client. Use your factual statement to emphasize your client’s humanity. Begin your brief with a summary of the important legal principles that will be restored if the court reverses what happened in the court below. Appellate courts are august bodies, but the same considerations apply when you are briefing your case above as when you are briefing it in a lower court.

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Chapter Nine

The Summary of Argument, or “Introduction” Generally speaking, all briefs are organized with one overarching structure in mind: your statement of facts, which are the relevant points in your client’s story, will come before your legal arguments. Other elements of your brief may be prescribed by rules or may be included because you think them necessary. I believe that, because judges have little time to read your briefs, you will also want to include a hybrid of the facts and the law, giving your judge a preview of the entire brief. This preview is often called the “summary of argument.” Appellate rules generally require such a summary. While it isn’t always a requirement, it is best practice to include a summary of argument in every initial brief. If it is not required by the rules in the jurisdiction or court you’re in, you may call it an “introduction.” In Pennsylvania, the appellate rules define the requirement for a summary of argument: Rule 2118. Summary of Argument.

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The summary of argument shall be a concise summary of the argument of the party in the case, suitably paragraphed. The summary of argument should not exceed one page and should never exceed two pages. The summary of argument should not be a mere repetition of the statement of questions presented. The summary should be a succinct, although accurate and clear picture of the argument actually made in the brief concerning the questions. The commentators on the rule explained the rationale for, and the usefulness of, the summary of argument. Because the summary of argument, if properly prepared, will be helpful to the court in following oral argument and will often render unnecessary inquiries by the court which consume time allowed for argument, counsel are urged to prepare the summary with great care. Similarly, Fed. R. App. P. 28(a)(8) provides that the summary of argument “must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief.” The summary should follow the organization of your brief. In other words, if you have made three legal arguments, labeled A, B, and C, your summary should follow the same order. Generally, you will not want to include citations in your summary of argument. The point is to be succinct. Allow the judge or panel to get the gist of your case without the distraction of the holdings of cases. 90

Keep it short. A long summary of argument defeats its purpose. As the Pennsylvania rule I quoted above says, two pages at the maximum. Not only will it help your judge be oriented to your arguments, it will focus you as well. The Truth about Judges Judges are overwhelmed with cases and with words. When you consider a judge’s caseload, you have to wonder how much of what you write will be read by the judge. Most of the time, the answer is: very little. That is why I’ve been emphasizing that your briefs should be brief and, to the extent possible, compelling. In order to persuade your judge or your panel, you need to grab them by the throat with the equity of your position. Judges want to do what’s right and what’s fair. You have to persuade them to do it, without taking an undue amount of their time. So keep within the page limitations set out in the rules. Be organized. And use clear, succinct language to get your points across.

Don’t Try This at Home A frustrated lawyer, limited by the federal court to a five-page brief in a complex case, found a loophole (i.e., something not expressly forbidden by the rules): he submitted a comic strip outlining his points. U.S. v. 91

Apple, Inc., Case 1:12-cv-02826-DLC (D.C.SDNY 2012). Bob Kohn used the cartoon panels to make his points and to cite to the law set out in a traditional table of cases. While clever, this probably did not endear him to the judge, who didn’t buy his reasoning but also didn’t sanction him.

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Chapter Ten

Follow the Rules Every brief is subject to rules. As I mentioned earlier in this book, rules will tell you how many copies you need to provide the court, what size paper you can use, and when the brief must be filed and served. These are the so-called formal requirements. Do you need a table of contents? A table of citations? A jurisdictional statement showing the court that it has the power to decide this matter? Your court rules will tell you. There is no way to finesse reading the relevant rules. The rules differ depending on the kind of brief you’re filing—in support of a motion, in opposition to a motion, in support of an appeal, in opposition to an appeal. The rules also differ depending on what court your brief will be filed in—trial court, appellate court, specialty court (such as a business court)—and what jurisdiction. There are state rules, federal rules, local rules, rules of thumb, and local practices, all of which will have an impact on the technical rather than persuasive parts of your brief. And don’t forget that many judges also have rules that will have an impact on your brief. There are also oddities you will have to contend with, such as the “Nanty-Glo rule” in the Pennsylvania

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state courts, which precludes the grant of summary judgment where evidence is wholly oral. For more on this peculiar rule, see the sidebar. The most important point is—beware of potential stumbling blocks. I believe it is highly embarrassing (not to mention malpractice) to lose a motion where the court bases its decision on your failure to follow the rules. In Peters v. Pine Meadow Ranch Home Association, 151 P.3d 962 (Utah 2007), the Utah Supreme Court struck the appellant’s brief and declined to hear the case on the merits because of the lawyer’s failure to follow the briefing rules. In its opinion, the court suggested that if it had heard the case on the merits, the appellant might have prevailed. Weird Rules Sometimes, despite having the law on your side and a complete absence of disputed facts, an odd rule will trip you up in your quest for judgment. A case in point is Pennsylvania’s so-called “Nanty-Glo rule.” If you are subject to this rule, the best brief in the world will do you no good. The rule states that a motion for summary judgment in state court will not be granted where the evidence supporting the motion is based on oral proof. In Borough of Nanty-Glo v. American Surety Co. of New York, 163 A. 523, 524 (Pa. 1932), our Supreme Court held that a directed verdict could not be entered where the moving party relied

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exclusively on oral testimony, either through affidavits or deposition, to establish the absence of a genuine issue of material fact…. The Nanty-Glo rule was reaffirmed and expanded to encompass summary judgment in Bremmer v. Protected Home Mut. Life Insurance Co., 260 A.2d 785 (Pa. 1970)…. The rule provides that, “[h]owever clear and indisputable may be the proof when it depends on oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts[.]” Nanty-Glo, supra at 524. Rosenberry v. Evans et al., No. 908 WDA 2011 (Pa. Super. 2012), —A.3d.—. I ran afoul of the rule when I was a fairly new lawyer. I was representing United Parcel Service. The owner of a mink coat was suing UPS because her coat had disappeared on its way from her furrier to her home. Unfortunately, her furrier had failed to insure the UPS package. Under federal law, pursuant to the so-called Carmack Amendment (49 U.S.C. Section 14706 et seq.), in the absence of insurance, UPS was able to limit its liability to the “released amount” set out on the bill of lading—$100. I filed a motion for summary judgment. In the brief supporting the motion, I discussed the primacy of the Carmack Amendment and the way it limited UPS’s liability. This was a classic case for summary judgment—as a matter of law, UPS was entitled to have the matter dismissed upon payment of $100. 95

Then Nanty-Glo reared its ugly head. The judge said it was a matter of disputed fact that the coat was in the package. I conceded for purposes of the motion that the coat was in the box, but the judge said it was for a jury to determine whether the coat was in the UPS package. He denied the motion. The failure to follow the rules can also get you disbarred. In 2011, the Seventh Circuit Court of Appeals referred a lawyer to his state ethics board and ordered him to show cause why he shouldn’t be barred from practicing law because of his failure to follow many different rules at different stages of the litigation. The proverbial straw that broke the camel’s back—the final straw for the court—was his brief, which did not follow the rules and was poorly written. See Stanard v. Nygren, 658 F. 3d 792 (7th Cir. 2011). Many advocates believe that rules are meant to be circumvented, if not outright broken. An example: rules limiting briefs to a certain number of pages. Let’s assume, for example, that the rules impose a thirty-page limit on briefs. Lawyers being lawyers, an advocate decides that thirty pages doesn’t give sufficient room for argument, so the advocate shrinks the margins, shrinks the line spacing, and makes the font smaller to gain a few extra pages. Most judges over the last twenty years have caught on to these tactics, and as a result there are now local rules, as well as judges’ individual court rules, requiring 96

specific margins, fonts, and spacing. Failing to follow these rules can result in sanctions as well as loss of the client’s case. Neither of these are desirable outcomes. Of course, rules are meant as guides and will occasionally be varied if justice requires. But in order to get a waiver of a particular requirement, you must petition the court, and to do so, you must have a good reason for your waiver request. What Makes You Think You’re Different? According to the US Court of Appeals for the Third Circuit, motions to exceed the page limit for briefs set out by the Federal Appellate Rules are filed in approximately a quarter of the cases on appeal. Almost three-quarters of those motions sought to have leave to file briefs that exceeded the page limits by more than 20 percent. That is a lot of motions. The court responded by setting up a special three-judge panel to rule on these motions, and it warned that the granting of those motions would be done sparingly. “Notice is hereby given that motions to exceed the page or word limitations for briefs are strongly disfavored…. It is further ORDERED that Counsel are advised to seek advance approval of requests to exceed the page/word limitations whenever possible or run the risk of rewriting and refiling a compliant brief.”

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The order is silent on the effect of such a re-filing, such as whether it might be considered untimely. See Standing Order Regarding Motions to Exceed the Page Limitations of the Federal Rules of Appellate Procedure, Jan. 9, 2012, U.S.Ct. App. Third Circuit. Rather than seeking more pages, an advocate’s time is better spent writing a brief that fits within the limitations of the rules. Lawyers always have a good reason, of course, and consequently petitions and motions for waiver of briefing requirements, especially the page-length requirement, have become commonplace. Logically speaking, though, most lawyers will not have a good enough reason if every lawyer claims he or she does. As a result, some jurisdictions have tried to limit the number of applications for waiver of the requirements. For example, in 2012, the US Court of Appeals for the Third Circuit set up a three-judge panel just to rule on motions to exceed the page limit for appellate briefs. And in the order, the chief judge stated that “motions to exceed the page or word limitations for briefs are strongly disfavored and will be granted only upon demonstration of extraordinary circumstances.” Standing Order Regarding Motions to Exceed the Page Limitations of the Federal Rules of Appellate Procedure, January 9, 2012.

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From the perspective of an advocate as well as the court, the shorter the brief, the punchier and more effective it is. Using more words to argue your point may be necessary in the complex or multiparty case, but generally a brief is not enhanced by being longer. In other words, your goal should be to write your brief within the parameters of your local rules. Don’t Try to Fool the Court Most procedural rules now specify what font, what spacing, and what margins you must use for your brief. For example, Local Rules of Civil Procedure for the District of New Jersey provide: Civ. RULE 7.2 AFFIDAVITS AND BRIEFS …. (b) Any brief shall include a table of contents and a table of authorities and shall not exceed 40 ordinary typed or printed pages (15 pages for any reply brief submitted under L.Civ.R. 7.1(d) and any brief in support of a motion for reargument submitted under L.Civ.R. 7.1(g)), excluding pages required for the table of contents and authorities. Briefs of greater length will only be accepted if special permission of the Judge or Magistrate Judge is obtained prior to submission of the brief.

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(c) All briefs shall be in black lettering on reasonably heavy paper size 8.5 x 11 inches. All margins shall be not less than one-inch on sides, top, and bottom. (d) Each page of a brief shall contain doublespaced text and/or single spaced footnotes or inserts. Typeface shall be in 12-point nonproportional font (such as Courier New 12) or an equivalent 14-point proportional font (such as Times New Roman 14). If a 12-point proportional font is used instead, the page limits shall be reduced by 25 percent (e.g., the 40 page limit becomes 30 pages in this font). Footnotes shall be printed in the same size of type utilized in the text. Amended: December 22, 1999, April 19, 2000. Source: L.Civ.R. 7.2(b)—G.R. 27.B.

7.2(a)—G.R.

27.A.;

L.Civ.R.

Note that your brief will not be accepted if it doesn’t meet the requirements of this local rule.

The Alaska Supreme Court Takes You by the Hand The Alaska courts’ website includes a tutorial on how to write a brief, with explanations of the briefing rules as you read along and examples of what each portion of a brief should look like. I believe this level of help will become commonplace in every jurisdiction.

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Here is the website’s version of the conclusion section of a brief: CONCLUSION For the reasons stated above, this Court should reverse the Superior Court’s findings that Goldilocks trespassed on the Brown Bears’ property and intentionally inflicted emotional distress on Baby Bear. This Court should reverse the damage award. Respectfully submitted at Anchorage, Alaska, on July 7, 2006.

Goldilocks Goldilocks pro se Appellant

CERTIFICATE OF SERVICE I certify that on the following date: July 7, 2006, I served a copy of: this brief and the excerpt of record on: The Brown Bears Homestead Rd.

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Talkeetna, AK 99676

By: Goldilocks

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Chapter Eleven

The Mechanics of Organization I may have mentioned this before: You will of course consult your court rules before writing or filing your brief. The rules in each jurisdiction will tell you what the formal requirements of your brief are. In some jurisdictions—more every year—the rules will also provide a road map for you to organize your brief. These rules are often very long and somewhat daunting to read. However, as trying as it is to figure it all out, you will find that these rules are actually incredibly helpful for organizing your brief. Take a look at the Alaska court system’s website. Alaska not only sets out its rule for organizing a brief, but it also includes commentary about each of the requirements, and examples. See the sidebar. Let’s take a look at one rule that is very specific about what should go in your brief and in what order. Federal Rule of Appellate Procedure 28 practically writes your brief for you! Not really. But it does impose organization on you, allowing the appellate panel to have certainty that each element it deems necessary to make a decision is in the brief. The rule doesn’t make the brief persuasive. That’s still up to you. Anatomy of a Rule

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Federal Rule of Appellate Procedure 28, in its entirety, spells out what must be in the initial brief of each party, as well as in a responsive brief. I have set it out in a separate sidebar. Let’s talk about the elements required by this rule. These are the substantive requirements that determine whether your brief will be organized. I’ll take them in order. Appellant’s Brief 1. A corporate disclosure statement: This is required under the Federal Rules and so far is not required in a majority of other jurisdictions. However, by the time you are reading this book, since the Federal Rules tend to act as a template for the rules of other courts, a corporate disclosure statement may be required in your jurisdiction. If it is required, as the rule says, look to Rule 26.1 for more information. 2. A table of contents, with page references: You will prepare this after you have written your brief, when you know what page everything shows up on. 3. A table of authorities, with page references: Again, you will prepare this after your brief is written. Proper citation to cases, statutes, and law review articles to which you refer will ensure that you will not be charged with plagiarism. Cases should be listed alphabetically. Statutes should be listed separately in numerical order. Other authorities 104

should be listed separately, using their titles alphabetically. 4. A jurisdictional statement: Does the court have the authority to hear this appeal? Is there subjectmatter jurisdiction? Is there appellate jurisdiction? Have all the statutory time frames been met for this appeal to be timely? Is this a final order? As you answer these questions, you will be citing to the relevant statutes, as well as the factual filing dates for the appeal papers. 5. A statement of the issues presented for review: These are the legal issues that you are asking the court to decide. Traditionally, these legal issues are framed as questions: “Did the court below err when it held that …?” It’s sort of like judicial Jeopardy! Although not required by the rules, by custom, many practitioners include the answers to these questions after each issue statement. If you are creating a positive question (“Did the court below err …?”), your answer should be “yes.” 6. A statement of the case: This is the procedural history and current procedural posture of the case. As I discussed above, most jurisdictions have page limits for briefs. I can hear you hyperventilating now, thinking: I’m going to use up half of my allotted pages with items 1 through 6. The good news is that the rules taketh away, but they also giveth: items 1 through 6 don’t count toward your page limitation:

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Headings, footnotes, and quotations count toward the word and line limitations. The corporate disclosure statement, table of contents, table of citations, statement with respect to oral argument, any addendum containing statutes, rules or regulations, and any certificates of counsel do not count toward the limitation. FRAP 32 A.7.B(iii). 7. A statement of facts: Finally, we get to the beginning of the persuasive part of your brief! We have talked about the statement of facts above. It is your client’s story. But this rule also requires citation to the record to show the court that your story has a basis in the evidence of record. 8. A summary of argument: I’ve discussed this above. 9. The legal argument: Here is where you present your legal argument, with citations to the authority you rely on and a showing of why your client’s facts fit those of the authorities. But unlike a lower court brief, the appellate rules require in addition a statement of the standard of review for each legal issue you raise. What you determine the standard of re view to be for each of your legal issues can influence whether your appeal has a chance. Generally, there are three standards of review: plenary (or de novo), clearly erroneous, and abuse of discretion. “For purposes of standard of review, decisions by judges are traditionally divided into three categories, 106

denominated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for ‘abuse of discretion’).” Pierce v. Underwood, 487 U.S. 552 (1988). A discussion of the scope of review is well beyond the purview of this book. Just be aware that it is a peculiarity of the appellate brief and is not generally an issue in a trial court brief. 10. The conclusion, with the relief sought. This requirement used to puzzle me: didn’t I just finish explaining what my client wants? Do I have to lay it out again? The lawyerly answer is—maybe. If the relief sought is relatively simple, as it would be in a lower court brief, your conclusion can be brief: “For all the reasons stated above, this court should deny defendant’s motion for summary judgment.” In a more complex case, your conclusion can be numbered, with the numbers corresponding to the legal issues you have raised in the brief: “For all the reasons stated above in Part I, this court should reverse the decision by the lower court to …” The rule goes on to provide direction for responsive briefs and, if allowed, a reply brief. The appellee’s brief is supposed to contain much of the same information as the appellant’s. Importantly, “none of the following need appear unless the appellee is dissatisfied with the appellant’s statement: (1) the jurisdictional statement; 107

(2) the statement of the issues; (3) the statement of the case; (4) the statement of the facts; and (5) the statement of the standard of review.” As I pointed out above, you will most likely want to reframe the statement of facts—at the very least, if you are the appellee. Perhaps you will also find fault with the jurisdictional statement, believing that the matter isn’t properly before the court. Perhaps you will disagree with the statement of the issues, or the standard of review, set out by the appellant. To the extent that your views of these issues don’t differ, you can refer in your brief to the appellant’s statements to say that you adopt them. The federal rules specifically contemplate a reply brief. Most jurisdictions allow a reply brief. This does not mean you have to file a reply brief, although every lawyer wants to have the last word. If the responsive brief doesn’t hurt you, a very brief reply to that effect is sufficient. Note that FRAP 28 also sets out what must be contained in a reply brief. Even if you are in a federal appeals court, you cannot simply rely on just the Federal Rules of Appellate Procedure. You must also consult the local rules of the circuit court you’re in. Often the local rules have a requirement that expands on the requirements of the federal rules. Obviously, the same holds true in any court: there are the rules, the local rules, and the judge’s rules. 108

Please check. And of course, in some cases the judge or judges will have ordered something at variance with the rules because of the peculiarities of the case. You must follow the court’s directions. I have found myself on occasion perplexed by certain local requirements that appear to conflict with the rules of the jurisdiction I’m in. One of the best suggestions I ever heard was: if in doubt, call the clerk of the court. The clerk’s office is often extremely helpful in reconciling local rules and overarching requirements. In fact, the clerk’s office in almost every jurisdiction, not just the federal appellate clerks’ offices, is an excellent resource if you are confused. Don’t forget to make use of it. Federal Rule of Appellate Procedure 28 Rule 28. Briefs

(a) Appellant’s Brief. The appellant’s brief must contain, under appropriate headings and in the order indicated: (1) a corporate disclosure statement if required by Rule 26.1; (2) a table of contents, with page references; (3) a table of authorities—cases (alphabetically arranged), statutes, and other authorities—with

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references to the pages of the brief where they are cited; (4) a jurisdictional statement, including: (A) the basis for the district court’s or agency’s subject-matter jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction; (B) the basis for the court of appeals’ jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction; (C) the filing dates establishing the timeliness of the appeal or petition for review; and (D) an assertion that the appeal is from a final order or judgment that disposes of all parties’ claims, or information establishing the court of appeals’ jurisdiction on some other basis; (5) a statement of the issues presented for review; (6) a statement of the case briefly indicating the nature of the case, the course of proceedings, and the disposition below; (7) a statement of facts relevant to the issues submitted for review with appropriate references to the record (see Rule 28(e));

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(8) a summary of the argument, which must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, and which must not merely repeat the argument headings; (9) the argument, which must contain: (A) appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies; and (B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues); (10) a short conclusion stating the precise relief sought; and (11) the certificate of compliance, if required by Rule 32(a)(7). (b) Appellee’s Brief. The appellee’s brief must conform to the requirements of Rule 28(a)(1)–(9) and (11), except that none of the following need appear unless the appellee is dissatisfied with the appellant’s statement: (1) the jurisdictional statement; (2) the statement of the issues;

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(3) the statement of the case; (4) the statement of the facts; and (5) the statement of the standard of review. (c) Reply Brief. The appellant may file a brief in reply to the appellee’s brief. Unless the court permits, no further briefs may be filed. A reply brief must contain a table of contents, with page references, and a table of authorities—cases (alphabetically arranged), statutes, and other authorities—with references to the pages of the reply brief where they are cited. (d) References to Parties. In briefs and at oral argument, counsel should minimize use of the terms “appellant” and “appellee.” To make briefs clear, counsel should use the parties’ actual names or the designations used in the lower court or agency proceeding, or such descriptive terms as “the employee,” “the injured person,” “the taxpayer,” “the ship,” “the stevedore.” (e) References to the Record. References to the parts of the record contained in the appendix filed with the appellant’s brief must be to the pages of the appendix. If the appendix is prepared after the briefs are filed, a party referring to the record must follow one of the methods detailed in Rule 30(c). If the original record is used under Rule 30(f) and is not consecutively paginated, or if the brief refers to an unreproduced part of the record, any reference must 112

be to the page of the original document. For example: • Answer p. 7; • Motion for Judgment p. 2; • Transcript p. 231. Only clear abbreviations may be used. A party referring to evidence whose admissibility is in controversy must cite the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected. (f) Reproduction of Statutes, Rules, Regulations, etc. If the court’s determination of the issues presented requires the study of statutes, rules, regulations, etc., the relevant parts must be set out in the brief or in an addendum at the end, or may be supplied to the court in pamphlet form…. (i) Briefs in a Case Involving Multiple Appellants or Appellees. In a case involving more than one appellant or appellee, including consolidated cases, any number of appellants or appellees may join in a brief, and any party may adopt by reference a part of another’s brief. Parties may also join in reply briefs. (j) Citation of Supplemental Authorities. If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter

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must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.

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Chapter Twelve

Ethical Issues Don’t skip this chapter because you believe you’re ethical. Even the most ethical among us are put in the position of being in a conflict of interest with our clients. An obvious example of a conflict is when a client who pays his exorbitant bills to you on time wants to settle the case. You were hoping that the litigation would go on until you put your children through college. In terms of brief writing, though, the conflict can become more targeted. Your client might ask you to fabricate a “fact” or lie about what actually transpired to cause the matter to become a lawsuit. You know you shouldn’t lie to the court. You know you shouldn’t misrepresent the facts or the law. You know that these no-nos can result in your client losing and you being sanctioned. Why will you be sanctioned? Because these behaviors are unethical. Every jurisdiction has its own rules of professional conduct, but there are no jurisdictions that allow unethical behavior. The American Bar Association’s Model Rules have been adopted in many courts, but you must check your jurisdiction’s rules for specific guidance.

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The rule forbidding lying is called “Candor Toward the Tribunal.” It says: Rule 3.3 Candor Toward the Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct

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related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6 [relating to confidentiality]. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

The Model Rules also prohibit lying to your opponent (Rule 3.4) and lying to third parties (Rule 4.1). Most lawyers don’t lie. But lawyers have a built-in conflict of interest, as I said at the start of this chapter: there is sometimes a disparity between what the client wants out of the brief and what the lawyer knows she must do. It is extremely difficult to tell a paying client that you won’t do what the client asks. For example, if a client insists that the brief you write include a statement in the statement of facts that you know to be false, it is clear under both the ethical rules and court rules, such as Federal Rule Civ. Pro. 11, that you can’t do that. (Well, you could do that, and run the risk of having your brief stricken, your case lost, and your 117

livelihood curtailed.) Painful as it will be to refuse to make the false state ment in the brief you write, it will be even more painful if the client fires you. That is of course the risk you take when you insist on only speaking the truth to the court. I have certainly represented clients who preferred to hide the truth of certain actions. “Hiding this document isn’t lying,” one said to me. “It’s just being silent on the truth.” WRONG. Failing to acknowledge facts that are unfavorable for your case is the same as lying. It is sanctionable conduct. In addition to being the ethical way to behave, it is also more effective for your client’s case to take the unfortunate facts and deal with them in a way that doesn’t deny your client the right to relief. It takes more work than just lying, but lying isn’t likely to succeed. Because either your opponent or the court will find out the truth. And there goes your chance of success. (I was able to convince my client to let the truth come out. If I hadn’t been, I would have “fired” him.) The example of the client who wants you to lie is an obvious black-and-white scenario. Don’t do it. But there are more subtle pressures that a client can bring to bear on the brief-writing process, and these pressures are harder to notice and therefore harder to resist. The client who wants to rewrite or edit your brief is the one you must monitor closely. Few small companies or entrepreneurs have the wherewithal to oversee the writing of a brief. While these clients might read the brief, they are unlikely to demand

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or even suggest changes. But big companies have inhouse counsel who often demand and receive the right to review and approve the brief before it is filed. If inside counsel rewrites your brief and the changes are substantive, not stylistic, is it still your brief? Are you still ethically liable for what it asserts? As you might suspect, the answer is yes, you are still on the hook. F.R.Civ.Pro. 11 and its state cognates make it clear that your name on the brief is your certification of its validity. In fact, whoever is responsible for misstatements of law or fact in a brief can be sanctioned under the federal rule, whether or not that person has signed the brief. “The sanction should be imposed on the persons—whether attorneys, law firms, or parties—who have violated the rule or who may be determined to be responsible for the violation. The person signing, filing, submitting, or advocating a document has a nondelegable responsibility to the court, and in most situations is the person to be sanctioned for a violation. Absent exceptional circumstances, a law firm is to be held also responsible when, as a result of a motion under subdivision (c)(1)(A), one of its partners, associates, or employees is determined to have violated the rule. Since such a motion may be filed only if the offending paper is not withdrawn or corrected within 21 days after service of the motion, it is appropriate that the law firm ordinarily be viewed as jointly responsible under established principles of agency … The revision permits the court to consider whether other attorneys in the firm, co-counsel, other law firms, or the party 119

itself should be held accountable for their part in causing a violation. When appropriate, the court can make an additional inquiry in order to determine whether the sanction should be imposed on such persons, firms, or parties either in addition to or, in unusual circumstances, instead of the person actually making the presentation to the court.” F.R.Civ.Pro. 11, Notes of Advisory Committee on Rules—1993 Amendment (emphasis supplied). You may be tempted to lift long explanations from treatises or from opinions in order to reduce the effort of writing your legal argument. If you must do this—for example, if the quotation is just too wonderful to forego—remember to give credit where it’s due. In other words, use quotation marks and citations. If you don’t give credit, you have committed plagiarism, and judges don’t like it. You can be sanctioned and made to forego the fees you charged for preparing the brief. Plagiarizing Is Unethical It’s so easy to cite the origin of material. It makes little sense to try to fob off on the court legal research and reasoning cribbed from a treatise. Not only does it annoy judges, but it can also get you sanctioned. “Seventeen of the nineteen total pages in the prehearing brief are verbatim excerpts from the Article [published by other lawyers]. Mr. Cannon added some introductory material, a one-page section titled

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“Argument,” and a conclusion. In between the introduction and argument, most of the first twenty pages of the Article are reproduced verbatim. The twenty pages Mr. Cannon reproduced appear as they did in the Article, with slight variations in formatting of the type that result when material is copied from one electronic document into another…. It is a violation of the Iowa Rules of Professional Conduct for an attorney to ‘engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.’ Iowa Rules of Prof’l Conduct R. 32:8.4. Plagiarism, which is ‘[t]he deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own’ Black’s Law Dictionary (8th ed. 2004), is a form of misrepresentation. Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v. Lane, 642 N.W.2d 296, 300 (2002); accord In re Lamberis, 443 N.E.2d 549 (Ill. 1982) (finding plagiarism constitutes deceit under Illinois Code of Professional Responsibility); cf. United States v. Jackson, 64 F.3d 1213, 1219 n.2 (8th Cir. 1995) (disapproving of a brief that ‘directly track[ed]’ a circuit court opinion which the attorney did not cite). Because attorney plagiarism violates the Iowa Rules of Professional Conduct, Lane, 642 N.W.2d at 299, an attorney who plagiarizes engages in misconduct under the local federal rules. S.D. Iowa LR83.2(g)(1).” In re Berghoff, U.S. Bnkptcy S. D. Iowa (2007), No. 05-10947. Mr. Cannon was sanctioned. The question of responsibility for factual and legal assertions in a brief brings up another question related to 121

ethics, which I will talk about in the next chapter. That is: Who’s in charge?

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Chapter Thirteen

Who’s in Charge Here? When I was a new lawyer, I worked in what was then the country’s largest law firm. As you can imagine, it took a while before I was allowed to write a brief. And of course, that meant drafting a brief for a junior partner, who would rewrite it and hand it to a senior partner, who might rewrite it. My goal during those early years was to anticipate the rewriting predilections of each partner so that my brief would emerge almost unchanged from the process. Those were, in some ways, the good old days for lawyers. Clients relied on their high-priced lawyers to navigate the factual and legal issues in such a way that the clients would win. Only rarely did in-house counsel insert itself into the process or “partner” with outside counsel. So in terms of who was in charge of strategy and who had the final say on a brief, the answer was simple: the senior partner. Legal life has become much more complex. The client who wants to actively participate in strategic thinking and in the nuts and bolts of the case—discovery, depositions, pleadings, briefs—is the norm, not the exception. So in terms of the hierarchy of oversight of

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your brief, it is most likely the client who will have the final say. But in addition, the complexity of multiparty litigation adds another round of oversight on briefs. Parties that are aligned with each other often cooperate in writing a brief. Each party will have its outside lawyers negotiate with the other outside lawyers on the factual and legal contents of the brief. In the chapter on ethics, above, I discussed the consequences to you of having others make factual assertions and legal citations that are false or misleading in the brief you sign. You will want to ensure that cooperating parties do not add or rewrite your brief so as to make it misleading. The comment of the Advisory Committee on Rules for Rule 11 of the Federal Rules is all-encompassing: “The person signing, filing, submitting, or advocating a document has a nondelegable responsibility to the court, and in most situations is the person to be sanctioned for a violation…. [T]he court [may] consider whether other attorneys in the firm, cocounsel, other law firms, or the party itself should be held accountable for their part in causing a violation …” In addition to the ethical issue, sharing draft briefs with counsel for other parties, even where those parties’ inter ests are aligned with your client’s, raises a new specter: waiver of the attorney-client privilege. Sharing a draft brief with counsel for another party potentially involves 124

revealing otherwise privileged strategy or other work product. In the case of multiple parties having their hands on draft briefs, the wisest course is to first draft, prepare, and have the parties sign a written joint defense agreement (JDA). (Although the joint defense agreement was originally limited to co-defendants in criminal cases, it is now understood to refer to parties whose interests are aligned even in civil cases, and even if they are plaintiffs.) The law on joint defense privilege, also known as the common interest privilege, is still evolving. The courts are still determining the contours of the privilege, and so you must check your own jurisdiction to decide if you can protect your work product with a joint defense agreement. Have you established that the parties involved have similar or identical interests? Do you have evidence of an intention not to waive the attorney-client privilege? Entering into a joint defense agreement is certainly evidence that you don’t intend to waive the attorney-client privilege, and it will provide a backdrop for your court to rule on if privilege becomes an issue in the case. “The common-interest privilege allows multiple defendants to share information while maintaining underlying protections such as the attorney-client privilege and the work-product doctrine…. [T]he JDA should expressly provide that no party can waive the privilege on any communi cations that are not solely its own without the express written consent of the other parties.” (Michael Morin and Samantha Weil, “Hang Together or Hang Separately: The 125

Common-Interest Privilege,” prepared for 2010 Practicing Law Institute program, The Joint Defense Group in Patent Litigation, Necessary Evil or Useful Asset?) The authors go on to suggest that all documents be clearly marked “confidential and privileged” from the outset of a joint defense collaboration. And of course, assuming that you and/or your client have chosen to share drafting of the brief with other parties, this adds a new layer of oversight onto the final product. The result can be a mishmash of writing styles. One particularly loud or powerful lawyer can impose a bland homogeneity to what originally was a well-written and compelling brief. Here is where you and your client can play good cop/ bad cop. You may not have the seniority or the power to impose your judgment on the writing of the brief. But your client may have the chops to do so. You can say to your colleagues: I understand why you changed that sentence. But my client hates it. He demands that we change it back to the way I wrote it. Of course, if your client is a small fry in a sea of sharks, you will have to swallow your agony. You should definitely express your wishes and your client’s wishes, but you will have to accept that others will make the final decisions. You and your client do have the option of withdrawing from the “group” and filing your own brief. Doing so may raise heaps of privilege and work-product problems, however. Does filing your own brief violate the joint 126

defense agreement? Does it render everything shared in joint meetings waived and available to your opponent? These considerations may lead you back to your acceptance of the jointly written brief. But now, back to ethics. You know that you do not want to be associated with a brief that violates ethics rules. What if you are too low down on the totem pole—in a firm, in the hierarchy of parties—to require a change that will make the brief ethical? First, let me say this. You are a lawyer. You chose to become a litigator. You have the ability to be persuasive when arguing a case. So, argue your own case when dealing with ethical issues. Whether it’s your client, a senior partner, or a co-counsel, you can argue the importance of not lying to the court. You can argue the importance of not plagiarizing from treatises or court opinions. You can argue the importance of using a citation fairly, to represent what the court actually said in the opinion. You can argue the importance of stating the facts as they are, not as your side wants them to be. Will your arguments about ethics succeed? Sometimes they won’t. Then you are indeed in the proverbial pickle. And then you might find yourself with the choice between resigning/getting fired (from the case or from your job) and staying silent. Derrick Bell, a law professor and author, wrote a book about ethical decision making called Ethical Ambition. In it, he describes the ethical choices he made to support civil 127

rights, and the loss of jobs, including a tenured professorship at Harvard, that resulted from his principled stands. But he also makes a valid point about the duty to your family and to your continued survival. Sometimes, he says, you have to temper your commitment to ethics with common sense. Sometimes Being an Associate Will Get You Off the Hook Federal district judge Matthew Kennelly, in Thul v. OneWest Bank, FSB, sought to sanction three lawyers—two partners and an associate—for failure to cite relevant authority in a brief. The associate skated.

“The Court entered an order directing defendants’ attorneys to show cause why they should not be sanctioned in connection with their failure to bring adverse Seventh Circuit precedent to the Court’s attention in their brief supporting their motion to dismiss plaintiffs’ complaint. See Thul v. OneWest Bank, FSB, Case No. 12 C 6380, 2013 WL 24599 (N.D. Ill. Jan. 2, 2013). The attorneys are John Beisner and Jessica Miller of the Washington, D.C. office of Skadden, Arps, Meagher & Flom, and Andrew Fuchs of the Skadden firm’s Chicago office. The attorneys filed a written response and also appeared in court yesterday, as directed. The Court made comments on the record and now enters

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this order to summarize its findings and resolve the issue of sanctions. First of all, the Court vacates the order to show cause as to Mr. Fuchs. In the attorneys’ written response, they stated that Mr. Fuchs ‘was neither the principal drafter of the briefs nor tasked with conducting research related to the briefs’; he relied on the other two attorneys concerning the legal content of the briefing; and he was not personally aware of the Seventh Circuit decision in question, Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012). See Counsel’s Resp. at 1. Mr. Fuchs is an associate, and the other lawyers are senior to him. The Court accepts the attorneys’ statement and vacates the show cause order as it relates to Mr. Fuchs.”

Case: 1:12-cv-06380 Document #: 49 Filed: 01/18/13. So if you have two children and a spouse to support and your job is on the line, you may not be able to take the high road. A dear friend who is a lawyer and the main breadwinner in her family was asked to sign a brief that contained factual falsehoods. She pushed back, but her superiors let her know that if she didn’t sign it, she was fired. She was wracked with guilt, but she signed the brief, and she got out of her firm at the earliest opportunity.

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Did she do the right thing? Obviously, she didn’t do the ethical thing. But she also had an ethical duty to support her family. She made the best decision she could under the circumstances. This common-sense approach does not give you license to lie. But it does allow you to weigh your options when faced with an untenable choice. I do want to repeat, though, that most lawyers don’t lie, that most partners won’t put you in a situation where you have to make a Hobson’s choice, and that most clients won’t ask you to falsify anything.

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Chapter Fourteen

Oral Argument Most law students and younger lawyers think of lawyers as spokesmen for clients, not as advocates. In other words, they expect to be on their feet, arguing in front of a judge, a jury, or an appellate panel. The written aspects of lawyering get short shrift in their consciousness. The importance of your written words can’t be overemphasized. But after you have prepared, filed, and served your brief, you may finally have the opportunity for your “Perry Mason” moment: to argue your client’s case orally. I will not try to describe for you the best way to argue a client’s case. First, it’s beyond the purview of this book. Second, every lawyer’s stand-up routine is different. I do, however, want to discuss the relationship between the brief you have just written and any oral argument you might have the opportunity to engage in. First, do the rules in your court even permit oral argument? The Federal Rules of Appellate Procedure show a bias for requiring oral argument except in certain situations:

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Rule 34. Oral Argument (a) In General. (1) Party’s Statement. Any party may file, or a court may require by local rule, a statement explaining why oral argument should, or need not, be permitted. (2) Standards. Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons: (A) the appeal is frivolous; (B) the dispositive issue or issues have been authoritatively decided; or (C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.

By contrast, the Federal Rules of Civil Procedure are biased against oral argument for motions brought in the trial court: “(b) Providing for Submission on Briefs. By rule or order, the court may provide for submitting and determining motions on briefs, without oral hearings.” (Rule 78).

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A number of federal district courts have utilized Rule 78 to discourage oral arguments. For example, the District of New Jersey local Rule 78.1 says: “(b) All motions and other applications will be decided on the papers submitted unless: (1) a party requests oral argument and the request is granted by the Judge or Magistrate Judge; or (2) the Court, sua sponte, directs that oral argument be held. Any request for oral argument shall be clearly marked on the first page of the notice of motion and/or the brief filed by the party making such request. If oral argument is to be heard, the Court will so notify the parties and designate the day and time of the argument.” In other words, consult your rules. If the court to which you have submitted your brief does not allow, or denies, oral argument, you will of course be thankful that your brief is persuasive. If you are given the opportunity to waive oral argument, should you? When I was a novice lawyer, one of the sage aphorisms I learned was that you can only lose at oral argument, not win. If you are going to win, the saying goes on, it will be on the briefs. Whether or not the saying is true, if you do argue your case, whether in a motion setting or an appellate setting, your focus should be on putting your best facts and best arguments first and concisely. You should not expect to be able to refer the court to your briefs in lieu of opening your mouth and saying something.

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However, as I have mentioned before, judges are human beings. Like a panel of jurors, they will be watching you as well as listening to you. If you enter the oral argument looking disreputable, the panel may take it out on your client, thinking that your client’s position is disreputable. And, as you would in front of a jury, you should also be watching the judges’ reactions for cues. Are the panel members nodding as you speak (not nodding off, nodding “yes”)? Are they looking at the ceiling? Are they trying to stop you? Pay attention to the reception you are getting from them. Jerry Shestack, a lawyer with whom I worked a great deal when I was an associate, was a brilliant tactician with a bull-in-a-china-shop personality. His thoughts were inwardly directed, and as a result he often was unaware of the impression he was making. I accompanied him to an oral argument on a summary judgment motion in federal court. I had worked with him on the brief. The brief was terrific. There was no doubt we would win. The judge listened to Jerry talk, nodded his head, and attempted to tell Jerry to sit down. But Jerry talked right over him. Our opponent’s lawyer was relishing the moment, watching the judge losing patience. Could this be his opportunity to watch a famous lawyer lose at oral argument? Happily, no. The judge finally put up his hand like a traffic cop, and Jerry stopped. “Sit down, Mr. Shestack,” the judge said. “You’ve made your points clearly and 134

succinctly in your brief.” And yes, our client won the motion. So beware of the tendency to talk no matter what. Pay attention to what your judge or judges seem to want from you. And don’t read long passages from your brief out loud instead of formulating a more concise oral presentation. Oral argument is a distillation of your main points, just as your summary of argument is a brief description of the facts and legal contentions in your brief. In fact, as I have mentioned above, a well-written summary of argument may obviate the court’s interest in oral argument, or at least reduce the number of questions the court has for you. The winnowing process that begins with writing a persuasive brief is furthered by a clear, concise presentation at oral argument.

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Chapter Fifteen

A Brief in Brief If you take away one concept from this book, I hope it will be: simplicity is the soul of your brief. Our goal as advocates is to be persuasive—to explain to others why our clients should win their cases. We want to do this using common language that everyone can understand. Your written brief should be the equivalent of you looking into the eyes of the judge or judges you are trying to persuade. My father was an appellate court judge for many years. Although he was often referred to as “brilliant,” he appreciated it when the briefs submitted to him were direct and concise. He despaired when the briefs contained “lawyer language.” He wanted to understand the issues, without rhetorical flourishes. Many lawyers don’t understand that they don’t have to “sound like lawyers” to make their position persuasive. Now, you are among the lucky few who do know that.

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Brief-Writing Checklist 1. Read the rules 2. Determine what your client wants the court to do 3. Determine what your most appealing fact is 4. Determine what your most appealing—and likely to succeed—legal argument is 5. Determine the formal requirements of your jurisdiction’s rules 6. Determine what you need to attach to your brief a. exhibits b. appendix c. statutes d. affidavits 7. Determine your time frames for filing and serving your brief 8. Determine whether you have the right to file a reply brief 9. Determine how to bring to the court’s attention new law that arose after you filed your brief 10. Determine if you want/need/are required to have oral argument

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Persuasive Writing Rules of Thumb First rule of thumb Grab the reader with your best, most equitable reason for why your client should win. Second rule of thumb Use acceptable but informal formal language. Third rule of thumb Use plain, jargon-free language. Fourth rule of thumb Use metaphors, allegory, and shorthand phrases very sparingly. Fifth rule of thumb Keep your sentences and paragraphs short. Sixth rule of thumb Use the active voice where possible. Seventh rule of thumb

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Show the court that your story is the best, don’t tell the court that it is.

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Index Abuse-of-discretion standard of review, p. 71 Acceptable language, use of, pp. 34–36 Acronyms, use of, for humanizing clients, p. 18 Active voice, using, pp. 36–37 Ad hominem attacks, pp. 9–10, 17–18 Alaska Supreme Court, tutorial on writing briefs, p. 86 Allegory, use of, p. 32 Altenbernd, Chris, p. 62 Ambrose, Andrea, pp. 70, 71 Analogy, arguing by, p. 56 Appeal of Cybernet Entertainment, p. 21 Appeals, losing, on briefs, p. 10 Appellant’s brief, requirements, pp. 87–93 Appellate appeals, pp. 69–74

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Appellate courts, pp. 69–70 Appellee’s brief, requirements, pp. 92, 95–96 Arguments avoiding confusing, pp. 7–8 leading with best, pp. 51–57 legal, in appellant briefs, pp. 90–92 oral, pp. 115–119 summary of, pp. 75–77 Auto-correct, avoiding reliance on, p. 5 Avocent Redmond v. Raritan Americas, p. 67 Bad writing, court sanctions of, pp. 38–41 Beginnings, of stories starting from, pp. 37–38 writing boffo, pp. 25–29 Bell, Derrick, pp. 111–113 Berger, Jeffrey, pp. 61–62, 64 Boffo beginnings, writing, pp. 25–29

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Borough of Nanty-Glo v. American Surety Co. of New York, pp. 79–81 Briefs Alaska Supreme Court’s tuturorial, p. 86 appellant’s, pp. 87–93 defined, p. 1 dirty, avoiding, p. 9 dirty tricks and, p. 68 failure to correctly cite law in, p. 63 formal requirements of, p. 2 goals of, pp. 2, 10–14 Hutz, pp. 61–63 leading with best arguments in, pp. 51–57 losing appeals on, p. 10 motions to strike, pp. 62–66 page limits of, exceeding, pp. 82–84 printing, rules for, pp. 84–85 responsive, pp. 59–66 142

seeking leave to file, p. 67 simplicity and, p. 121 sur-reply, pp. 66–67 things to avoid in persuasive, pp. 4–10 variants of, p. 1 writing checklist, p. 123 Candor Toward the Tribunal, pp. 100–101 Cardozo, Benjamin, p. 33 Case on All Fours, p. 52 Cases finding law for support of, pp. 43–45 misstating holding of, pp. 45–51 statement of, pp. 89–90 unprecedented, p. 56 Castel, Kevin, p. 67 Checklist, brief-writing, p. 123 Citations

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avoiding improper, p. 7 following rules for, p. 26 forms of, and jurisdictions, pp. 48–49 strategizing, to record, p. 41 of supplemental authorities, p. 97 Clerks of the court, as resource for rules, p. 93 Clients determining needs of, pp. 13–16 humanizing, pp. 17–22 obnoxious, handling, p. 21 Cohen v. California, p. 34 Comic strips, avoiding use of, p. 78 Common interest privilege, pp. 109–110 Corporate disclosure statement, p. 88 Corporations, humanizing, pp. 18–19 Courts, determining what you’re asking from, pp. 13–16 Cybernet Entertainment, pp. 34–35

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Deadlines, responding to motions and, p. 68 Denominated questions of law, p. 91 De novo standard of review, p. 71 Dignity, avoiding lack of, p. 5 Dirty tricks, avoiding, p. 68 Discretion, matters of, p. 91 Easy-to-read language, using, pp. 29–30 Elegant writing, p. 33 Ethical Ambition (Bell), pp. 111–113 Facts avoiding misstating, pp. 28–29 proving, p. 26 statement of, p. 90 False statements, pp. 100–104 Falwell v. Hustler Magazine, p. 21 Federal Rule of Appellate Procedure (FRAP) pp. 28, 94–97 late-breaking case law and, p. 55 145

requirements, pp. 94–97 Focus, keeping, in narratives, p. 36 Game plans, preparing, p. 16 Goals, of briefs, pp. 2, 10–14 Grammar, avoiding poor, p. 4 Holding of case, misstating, pp. 45–51 Hutz briefs, pp. 61–63 Improper citations, avoiding, p. 7. See also Citations Informal formal language, using, pp. 29–30 Introductions (summary of argument), pp. 75–77 Issues, statement of, p. 89 Jacobellis v. Ohio, p. 32 Jargon, avoiding, pp. 30–32 Joint defense agreements (JDAs), pp. 109–110 Judges motions to strike briefs and, p. 65 truth about, p. 77

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Jurisdictional statement, pp. 79, 89 Jurisdictions, forms of citations and, pp. 48–49 Kennelly, Matthew, p. 112 Kiobal v. Royal Dutch Petroleum, p. 20 Klein, Larry A., p. 73 Language avoiding obscene, pp. 9, 34–36 avoiding “suck up,” p. 32 using acceptable, pp. 34–36 using easy-to-read, pp. 29–30 Law finding, for support of clients’ cases, pp. 43–45 misstating, avoiding, pp. 46–47 Lebovits, Gerald, p. 6 Legal arguments, presenting, pp. 90–91 Letter Briefs, p. 1 Litigation, multiparty, pp. 108–111

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Lying, rule forbidding, pp. 99–104 Mainstream language, using, in stories, pp. 34–36 Memorandum of Law, p. 1 Metaphors, use of, pp. 31–32 Motion practice, p. 1 Motions to strike briefs, pp. 62–66 Multinational corporations, humanizing, pp. 20–21 Multiparty litigation, pp. 108–111 Nanty-Glo rule, pp. 79–81 Narratives. See also Stories focused, keeping, p. 36 writing compelling, pp. 23–24 Needs of clients, determining, pp. 13–16 Nicknames, use of, for humanizing clients, p. 18 Obnoxious clients, humanizing, p. 21 Obscene language, p. 9 avoiding, pp. 34–36

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exceptions to using, pp. 34–35 Opinions, unreported, p. 53 Opposition, avoiding demonizing, pp. 9–10 Oral arguments, pp. 115–119 Organization, avoiding poor, p. 11 Page limits exceeding, of briefs, pp. 82–84 rules for, pp. 84–85 Palsgraf v. Long Island Railroad Co., p. 33 Passive voice, avoiding, pp. 36–37 Persuasive briefs, things to avoid in, pp. 4–10 Persuasive writing, rules of thumb, pp. 125–126 Peters v. Pine Meadow Ranch Home Association, pp. 9, 10, 73–74, 80 Pierce v. Underwood, p. 91 Plagiarism, pp. 104–105 Plain writing, p. 33 Poliner, M.D. v. Texas Health Systems, p. 19 149

Political correctness, avoiding too much, p. 6 Poor grammar, avoiding, p. 4 Popov v. Hayashi, p. 56 Procedural rules, p. 2 Punctuation, using proper, p. 36 Questions of fact, p. 91 Record, strategizing citations to, p. 41 Redwood v. Dobson, p. 65 References to parties, p. 96 References to the record, pp. 96–97 Relief sought, p. 91 Reply briefs, requirements, p. 96 Reproduction of statutes, rules, regulations, p. 97 Responsive briefs, pp. 59–66 Review, standard of, pp. 70–71 categories of, p. 91 Rosenberry v. Evans, p. 81

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Rules, pp. 69, 70, 79–80. See also Writing rules, good failure to follow, pp. 6, 82 for page limits, pp. 82–84 proving facts and, p. 26 responsive briefs and, p. 60 of thumb, persuasive writing, pp. 125–126 weird, pp. 80–81 Run-on sentences, avoiding, p. 4 Sanches v. Carrollton-Farmers Branch Independent School District, pp. 40, 72 Seeking leave to file briefs, p. 67 Sentences, run-on, avoiding, p. 4 Shestack, Jerry, p. 118 Shorthand phrases, use of, p. 32 Simplicity good writing and, p. 32 as soul of briefs, p. 121 Sobol v. Capital Management Consultants, pp. 28–29 151

Spell-checkers, avoiding reliance on, p. 5 Stanard v. Nygren, pp. 8, 38, 82 Standard of review, pp. 70–71 categories of, p. 91 Statement of case, pp. 89–90 Statement of facts, p. 90 Statement of issues, p. 89 Stewart, Potter, p. 32 Stories. See also Narratives acceptable language for, pp. 34–36 active voice for, pp. 36–47 avoiding jargon in, pp. 30–32 avoiding misstating facts in, pp. 28–29 beginnings for, pp. 25–29 easy-to-read language for, pp. 29–30 including beginning, middle, and end for, pp. 37–38 keeping focus in, p. 36

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showing vs. telling, pp. 37–38 simplicity and, pp. 30–32 starting from beginning and, pp. 37–38 Substantial-evidence standard of review, p. 71 Suck up language, avoiding, p. 32 Summary of argument (Introduction), pp. 75–77 Supplemental authorities, citation of, p. 97 Sur-reply briefs, pp. 66–67 Table of authorities, pp. 88–89 Table of contents, p. 88 Technology, avoiding reliance on, p. 5 Thomas v. Tenneco Packaging Co., pp. 9–11 Thornton, v. Wahl, pp. 44, 46–47 Thul v. OneWest Bank, pp. 112–113 Unprecedented cases, p. 56 Unreported opinions, p. 53 Voice, active, use of, pp. 36–37

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Wald, Patricia M., p. 31 Weird rules, pp. 80–81 Writing, bad, court sanctions and, pp. 38–41 Writing checklist, for briefs, p. 123 Writing rules, good, pp. 125–126 avoiding jargon, pp. 30–32 grabbing reader’s attention, p. 27 maintaining simplicity, p. 32 using active voice, pp. 36–37 using easy-to-read language, pp. 29–30 using short sentences and paragraphs, p. 36 Writing rules of thumb, for persuasive writing, pp. 125–126

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About the Author Janet S. Kole was a litigator for over thirty years, and she has written several books and many articles for young lawyers on the basics of litigation practice. She now writes full-time and spends her leisure time on the golf course or on boats. When not writing about the law, she writes mysteries. Previous books Published by the American Bar Association: 1. Environmental Litigation 2. Chasing Paper 3. Pleading Your Case Published by CreateSpace, Amazon, Barnes & Noble, and Smashwords:

Suggestion of Death, writing as Janet Kole

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