Alan DuBois on briefing

Practice area:

Following up on my last entry, here is the download from Alan DuBois, the First Assistant Public Defender of the District of North Carolina (so he spoke from the criminal defense perspective and how to draft the appellant brief).  His presentation was excellent and thought provoking, in part because he spoke against conventional wisdom.  Here are some nuggets I found useful:

  • Start by looking at the appeal from the ordinary human perspective to identify what you think was unfair.  (Yes; do this with your oral argument, too – explain your case to a non-lawyer and why you should win).
  • Flowing from the first point, he finds the facts most important, because you can always find law by going up levels of abstraction.  (This may be a criminal defense perspective, because in that context you usually have some adverse law to wrestle with.  On the civil front, where you can decide whether to appeal at all, the law, I think, is pretty important, if only because of the standards of review.  That said, I still believe in the basic premise – you need to identify and explain why the result was unfair, keeping ordinary lay people language and values in mind throughout the process).  On the same point, he thinks briefs usually have too much law – the judges know the law, and people dump in boilerplate they don’t need. 
  • He doesn’t quickly vomit ideas onto the paper.  His approach is to ruminate first.  He said that he has never had a eureka moment on Westlaw, but more often in the shower, after letting his thoughts percolate subconsciously.  (Personally, I have had a few Eureka moments wandering around on Westlaw.  In one appeal, it was worth about $30 million).
  • Remember, that you only win on one issue.  While you still have to raise other issues for various reasons (preservation, heartstrings, client needs, cumulative effect), you need to focus on your best argument. 
  • Framing is important – do not play on the other side’s field.  (I agree wholeheartedly with this one).  Don’t preview the other side’s argument in your opening brief – save it for the reply (but remember the last blog entry and Judge Kayatta’s advice – don’t let the reader be surprised by something you left out of your opening appeal brief, either.  It’s a balance.)  Structure the brief in the way that puts your argument in the best light.
  • Don’t necessarily take the safe structural route in your brief – here are the facts, here’s the law, here’s the law applied to the facts; fact, law; fact, law, snore.
  • In the same vein, don’t be boring.  Start your brief in the middle of the action, or why the case matters.
  • He said that he puts his summary of argument not only in his summary but again in the first paragraph of the guts of his argument (even though one follows right after the other).  He likes the first paragraph of the argument itself to preview what’s coming.
  • Your template shouldn’t be a dense law review, but rather a New Yorker non-fiction narrative.
  • Each sentence needs to be concise and clear.  (This is very true and I’ve blogged on this before – no adjectives!  No adverbs! Cut the fat!)
  • He repeated Judge Kayatta’s advice on the importance of the Table of Contents (as I’ve blogged on numerous times – road map!  Road map!)  The current advice seems to be to make your heading like the Solicitor General’s in his Supreme Court briefs.  If you do, you are certainly following Judge Kayatta’s recommendation about having the complete argument in your headings.  But the SG headings can be pretty jam packed, so if you can make your point in fewer words, I’d do it. 
  • Be consistent with your key words – repeat the same phraseology; your short hand wording should always be the same throughout the brief.
  • As to optics, he agrees with having visuals embedded in the document.  His personal bugaboo is two spaces instead of one after a sentence (he says it creates white line rivers down your page).  He is against times new roman and courier, and recommends using a clean, non-wacky font, like bookman.  (Bookman is nice, but it takes up a lot of space.  I like Garamond.) There is a whole book on fonts for lawyers if you are fascinated with this topic.

That’s my brain dump on the federal seminar.  Friday comes the Law Court seminar.