Appellate Adderall and Brief Obesity


Continuing re the MSBA seminar on drafting pleadings and motions, Justice Alexander observed that current researchers do not go to secondary resources enough.  He said that too often the researcher of today is focusing exclusively on the individual cases cited by the other side, and basing his or her research solely on that portal, when it would make sense to look early on at a secondary overview of the topic to get oriented.

I couldn't agree more.  I almost always see if there is an on-point article before I start wading through the case law.  Maybe some people think this is more expensive, but I would say au contraire (I was a French major, so I like to keep these little tidbits in my vocabulary).  First, by helping you focus, getting the legal overview saves research time.  Second, you'd be surprised how many articles are available free on the internet.  Just the other day, before going automatically to westlaw to wander through the JLR and TP-ALL libraries, I googled my word search and presto! practically the first item listed was a recent Gonzaga Law Review article squarely on point. 

Some people have said that the old-fashioned law review is dead.  I certainly hope not, but the alternatives aren't necessarily something to scorn either.  Academics are experimenting with shorter on-line efforts, and heaven knows there are lots of blogs on substantive legal topics.  Obviously, the more informal and loosey-goosey the source, the less you can rely on it when, e.g. citing an authority in your brief.  But that's not the point.  The reason why you tiptoe through the secondary world before crunching the cases is to get the general picture so you can then concentrate your more cite-worthy efforts. 

So right-o, Justice Alexander!

Regarding other tidbits from the second session of the MSBA Drafting Pleadings and Motions seminar, in the portion on drafting appellate briefs, which I shared with Justice Levy, Justice Levy started us off by talking about standards of review.  This is also an area that suffers from insufficient attention.  At the appellate levels, the merits often rise and fall and the standard applied.  There is no point in ignoring it; what you need to do is learn how to exploit it in your favor.

Finally, I would note that the common theme of all the presentations I attended was FOCUS.  This isn't just because the courts are extremely busy and don't have time to plod through tomes – although that is certainly true.  Do it because it makes for a better argument, period.

For example, the D.C. Court of Appeals has a rule whereby you have to put an asterisk by the most important authorities on which you are relying in your table of authorities.  This is a great exercise that I always try to do in the course of drafting any brief – what is my best case?  How do I construct an argument devoid of any fat, to keep the court on the course I want to take them, driving toward my desired end? 

This doesn't mean that you don't have to do your homework and cast a wide net in your research.  But the end product should be nimble and concise.