So here's a summary of the writing and oral argument tips from the criminal appellate CLE conference I referenced in previous entries. But first a shout out to our friends and colleagues in Boston and all those tough marathoners. I think Stephen Colbert said it best –
1. Secrets of the great brief writer – Ross Guberman.
This was a good presentation because his points were short and snappy, he used concrete examples, and he wasn't afraid to take a position. The examples he used were from the whoop-de-do Supreme Court arguers (Roberts, Clement etc.), and they are contained in the fat written materials that went with the conference (free, remember?), so if you can get your hands on them just to review this section, you should.
First he concentrated on the introduction to the brief. Since there is no introduction section in a First Circuit brief per se, it's a little unclear where he means to put this – as early as you can, I would suppose, excluding the jurisdictional section, since no one reads that, as he noted, except maybe a clerk. (Remember, while there's no intro section listed in the Maine SJC rules, they like them, so there's no problem labelling it "introduction" and putting one in right up front.)
The intro is where you grab your reader. His points were:
- Think like a journalist — get in the who, what where.
- Include a list of reasons why you should prevail (given people's short attention spans these days, bullets and lists are critical – note how I am doing this now?),
- include some detail that's just your case – don't make the discussion too generic (although, he said, in being specific, don't underestimate the big picture – he said researchers say too many brief writers do just that).
- Use a particularly snappy short first sentence.
- Don't use highfaluting transition words like however or accordingly. Use buts and yets. And they don't have to be at the very begining of the sentence. (Indeed, Strunk & White says using a however at the beginning of a sentence is a no-go, so I – and CJ Roberts – never do.)
- He likes metaphors, similes and analogies, and says have one good one somewhere in the brief. (Here's a digression – John O'Hara, a good 20th century writer – Appointment in Samarra is as good, if not better than anything Fitzgerald did – never used similes or metaphors. You can hunt through his whole oeuvre, which is pretty huge, and not find one. Instead, he used detail, and eons before Stephen King, name brands. ). Be careful and choose the right one – always for a legal concept, not in the facts. Justice GInsberg's "skim milk marriage" description in the recent same-sex marriage argument is a good one – it's a short cut that resonates in your brain. When you have a good one, apt and simple, which everyone can relate to, then carry it through.
- Speak directly to your reader, using words like imagine, take, assume and suppose.
- Avoid annoying cliches like "fatally flawed," especially when criticizing the other side. It's their argument, not the other side personally, that's always wrong.
- Use better, more sensory verbs – instead of ignore, use jettison. Not fatal, but doomed. And no adverbs. He said to go to your outlook spelling and grammar tab and turn on the passive voice check to see if each time you use it you need it. He says it's not always bad – the motion was denied is fine –, and sometimes it's a positive good to use (if you are defending a bad actor, put those bad acts in the passive, like they came from outer space, not your guy). But using the prompt will help you check.
- Visuals are always good – tables, lists etc.
- The footnote debate – he quoted Justice Scalia, who said the Solicitor General uses them, and that's good enough for him, and notes that they can have a purpose – e.g., for dumping a string cite.
In the little time that remained for him, he basically said you should show not tell. If you have to point out what conclusion should be drawn from what you are saying then you haven't said it right. (This is a very good point.) He said to scan the fact sections for the word "which," a signal that some explanatory text follows that shows you need a re-do.
When I saw Margaret McGaughey at a break – the doyenne of appellate writing at the US Attorney's office — she agreed with me that the fact section is the most important section in the brief. So pay attention to this section, and spend as much, and probably more, time on this than anything else.
2. Judge Lipez on writing and argument
The Judge began his presentation by noting what a day of argument looks like for him (thus using the show not tell style of providing specificity without making a generic conclusory statement) - they hear six arguments a day, with around 1000 pages of briefing (read: you need to make your presentation stand out).
Following the make lists recommendation, he cited 11 qualities of a good brief.
1. paranoia. Don't make mistakes about the record and the law. The clerks – they get four of them each – check everything.
2. obsessiveness. Don't have typos, grammar mistakes etc. It suggests sloppiness and it's annoying. He noted a case in a bankrupty decision (elsewhere) in which the judge lowered the awarded fees because the lawyer's filings were infested with typos, which the court said showed disprespect and made the process longer. The lawyer got a $31,000 haircut.
3. organization. He suggested writing the summary of argument first, then the rest, using it as a guide, and massaging it as you go along. He noted that the judges re-read the summary before hearing argument.
4. creativity. Make your brief stand out without going overboard.
5. moderation. Don't be a whiny pants (no, he did not use this phrase; I'm translating). Watch your tone. Be temperate. Do not shout in the brief with bold face, exclamation ponts etc.
6. realism. Don't make overturning decades of precedents, or challenging something reviewed on an abuse of discretion standard the centerpiece of your appeal if you can avoid it.
7. nimbleness. This is important particularly for appellees, he said, to know how much time to spend responding to the appellant's arguments versus raising alternative arguments. Raise your best defense first, even if it's not one the trial court relied on; the appellate panel will notice this, but you won't be penalized.
8. concision. He said too many briefs lose steam toward the end.
9. currentness. He said people are still ignoring Twombley and the proper standard for summary judgment.
10. opportunistic. Always file a reply. (He's mentioned this before, as we have noted in previous entries.)
11. honesty. Don't exaggerate.
He had 16 points.
1. timeliness. He said you'd be amazed how many lawyers are late – even if your case is scheduled third, you have to show up at the beginning, because arguments get scratched at the last minute. And if you are late, apologize to the court. (I find it astounding that he has to say things like this.)
2. preparedness. (Again, this should not be a news flash). Do not voice the excuse that you are not the counsel below. He strongly recommended moots.
3. flexibility. Do not be a slave to a script. Have something prepared, though, so that if the Q&As end, you are ready to return to your points without an awkward silence.
4. courteousness. Be polite (He gave some startling contrary, real life examples.) Be nice and likable. Do not ask judges questions, including asking them to re-phrase their question. (If you do have to ask, make sure you dump the blame on you for not getting it.)
5. engage. Don't let your body language show you don't care or don't believe in your case, or are happy the whole ordeal is over.
6. focus. Have a snappy opening.
7. Alertness. Sit down if it's clear you won. But other situations are harder to read, so don't think the questions predict a view, unless you know the judge well.
8. efficiency. Never open with procedural history or the facts. Cut to the chase.
9. loudness. Speak up. The judges, he said, aren't getting any younger and may not like to be reminded that their hearing isn't what it used to be. If you see them hunched over trying to hear you speak louder. And don't wander from the podium and mike.
10. unflappability. When the red light goes on, leave the impression that you have lots more to say, and finish your sentence without asking. (Be careful here, don't go on and on.)
11. appropriateness. This is not a jury or a Justin Bieber concert (yes, my paraphrase again). No inflated rhetoric, big gestures, or emotional appeals.
12. modesty. This is the point I mentioned in a previous brief – say who you are, but not your firm, because that sounds like bragging. This was news to me, and alone this nugget made attendance worth while.
13. The right word (he said something else here but I missed it). The point is don't use a big word you really don't know.
14. Good conduct at counsel table. Don't fidget and make faces.
15. opportunistic. Always reserve at least two minutes for rebuttal, if only so your opponent knows that you've got the last word and can correct anything he says.
16. authenticity. You have your own voice and style. Be true to it.
And there you go. Piece of cake, right?