The February edition of The American Lawyer has a short article about Making Your Case: The Art of Persuading Judges by the co-author of the book with Justice Scalia, Bryan Garner. In the article, he highlights his differences of opinion with Nino:
– contractions – he thinks they can be used; Justice Scalia thinks they don't fit in the more formal tone warranted in a brief;
- footnotes - he doesn't like substantive footnotes and likes to use the footnotes to dump cites in; Justice Scalia says the Solicitor General uses substantive footnotes and they write the best briefs; such footnotes are for the clerks (v. judges); and dumping the cites to the bottom leads to whiplash reading up and down;
- neutralizing language – he does it, Justice Scalia says "he" is fine.
These issues come up time and again in appellate conferences and discussions, and the my overarching view is Do No Harm. If people disagree about something that doesn't matter, go the route where no one is offended. So don't (oops do not) use contractions – somebody might be offended if you use them, while no one will be if you don't. Avoid footnotes if you can (I wouldn't use the whiplash maneuver unless the Court itself does nand neither the SJC or First Circuit goes this route). Neutralize the language wherever possible – just pluralizing to "they" usually works. Again, if you avoid "he" in a non-aobvious way, you avoid offending people for no reason.
This rule of thumb applies to everything you do – what you wear, how you stand, what you say. Why upset people unnecessarily? It's hard enough to win an appeal – why distract the court, or at least individuals, and make it harder on yourself?