This morning, I presented an hour of CLE on appellate practice for the Louisiana State Bar Association’s “Bridging the Gap” seminar, a program for newly minted lawyers who passed the February 2014 bar exam. For attendees and anyone else who may be interested, here are some supplemental materials used or discussed in the presentation:
Two entertaining and informative articles by Chief Judge Alex Kozinski of the U.S. Ninth Circuit:
In Praise of Moot Court—Not!, in which Judge Kozinski discusses the differences between law-school moot-court competitions and real-world appellate practice
The Wrong Stuff, in which Judge Kozinski offers tips to help you lose your next appeal
For reasons discussed at the seminar and elsewhere, I recommend against over-reliance on forms. With that caution stated—and with no warranties—I offer some samples of pleadings and briefs, all in PDF:
Today the Louisiana Second Circuit announced a few amendments to the Uniform Rules. If you need a copy, click here to download the PDF. Here is my take on the amendments:
Rule 2-18.2, governing the time to apply for rehearing, has been updated to accommodate electronic notification of the court’s actions. The 14-day period to apply for rehearing is now triggered by transmission of the notice of judgment (as opposed to mailing or delivering of the notice of judgment).
Rules 2-7.2 and 2-7.4, governing motions, have been amended to require motions to be of “a singular or alternative nature.” I think the purpose of this amendment is to prevent parties from seeking multiple forms of relief in a single motion. For example, if you want both an extension of time to file your brief and an enlargement of the page limit, you have to file two motions; you can’t combine both requests in one motion.
(Originally written 15 Oct. 2014; corrected on 16 Oct. 2014.)
Fifth Circuit Rule 30.1.7 provides that the electronic PDF version of the record excerpts should contain pages representing the “tabs” identified in the index of the document. However, we remind attorneys that the paper copies of record excerpts filed with the court must contain actual physical tabs that extend beyond the edge of the document, to facilitate easy identification and review of tabbed documents.
I am no expert in drafting contracts; that expert is Ken Adams. But this post of his resonates with me as a briefwriter. I don’t like boilerplate anything in persuasive writing. Why? Because nobody reads boilerplate. If you have not put any thought into the sentence, if you have not figured out how to make it either informative or persuasive (or better yet, both), then you are wasting ink, paper, pixels, etc.
The only formulaic things in your brief should be things like certificates of service and of compliance with the rules, and the verification in a writ application. Even those should be written in plain English; and you should check the rules to see whether they’re necessary. Everything else must either inform or persuade or both. This rule includes things that many lawyers boilerplate, such as the jurisdictional statement and the statement regarding oral argument. It definitely includes the standard of review. This means that nothing, NOTHING in your brief should be a cut-and-paste job.
Tip of the day for appellate lawyers: handle the court’s record with care. Try to avoid spilling coffee or Diet Coke on it. And if you smoke, well, heed n. 1 in this recent decision by an Indiana appellate court:
We note, as we have in a prior memorandum decision, that the transcript in this case emits an unpleasant odor consistent with that of cigarette or pipe smoke that is apparent, offensive, and consistent. We kindly remind all those who handle the record on appeal to avoid such contamination.
Bryan Garner tells participants in his seminars that good writing makes the reader feel smart, while bad writing makes the reader feel stupid. What is the root of this kind of bad writing? Mark Herrmann has an idea about that, drawn from cognitive scientistSteven Pinker: we think that our readers already know what we are trying to tell them. Pinker calls this phenomenon “the curse of knowledge.”
So what is the cure for this affliction? Herrmann recommends empathy for the reader. “Put yourself in the reader’s state of ignorance,¨ he counsels, “and write for that audience.” Pinker suggests testing your draft one people who don’t already know what you’re trying to tell them:
A better way to exorcise the curse of knowledge is to close the loop, as the engineers say, and get a feedback signal from the world of readers—that is, show a draft to some people who are similar to your intended audience and find out whether they can follow it. Social psychologists have found that we are overconfident, sometimes to the point of delusion, about our ability to infer what other people think, even the people who are closest to us. Only when we ask those people do we discover that what’s obvious to us isn’t obvious to them.
Garner has a similar recommendation in The Winning Brief, at least for cases where the amount at stake is worth the expense: Convene a focus group of lawyers unfamiliar with the case to play the part of appellate judges by reading and reacting to your draft brief. This exercise has many benefits. One of them is to tell you whether the curse of knowledge has infected your brief.
As for me: I like where I am. I didn’t get here with circuit court or Supreme Court credentials (I don’t have any); just an aptitude for the work coupled with years of experience. My only advice is not to let your earliest years out of law school define your entire career. It took me 10 years to figure out that appellate practice best suited me.
Would you like to know the writ-grant rates in the Louisiana Supreme Court and the five Louisiana courts of appeal? The numbers are published in the Louisiana Supreme Court’s Annual Report for 2013. The report is a treasure chest of information about the operation of Louisiana’s courts. But for appellate practitioners, the most useful information is found on pages 22 through 29, where you’ll find the statistics, including total writ applications filed, total granted, and total denied for each court. For the Supreme Court, you can also see the numbers for rehearing applications. (Hint: not good for the applicant—zero rehearings granted in 2013).