Briefwriting tips

Advice from La. appellate judges: Try to stay in the circuit.

Here is one takeaway I got from last week’s LSBA Advanced Appellate Practice Seminar: The judges of the court of appeal prefer citation to their own courts’ cases over cases from other Louisiana circuits. So when citing a case for a legal proposition, try to find one from whichever circuit your brief is going to. Cite cases from other circuits only when you can’t find one just as good from within the circuit.

This isn’t surprising. In my observation, Louisiana’s appellate courts have been moving away from jurisprudence constante and toward stare decisis, meaning that they consider their own precedents as binding. I don’t have anything empirical to back this up; just my own observation of anecdotal stuff.


Plain language wins.

Does plain language in briefwriting translate into winning? It probably does. At least there is a correlation between use of plain language and winning. That’s the result of an empirical study of appellate briefs by Prof. John Campbell of the University of Denver Sturm College of Law. His conclusion:

We can’t prove from one study that style wins cases, but we can conclude that those who win cases most value writing style. Often, we spend a great deal of time on research, framing, and crafting argument. And we must do these things. But style matters too. Voiceless, passive, complex writing is a liability. Given that energetic, simple writing rules in the Supreme Court and even correlates with winning in the busy Ninth Circuit, we’d all do well to set aside some time to make our briefs read more like a Grisham novel and less like a statute. Judges and our clients will thank us.

To read an abstract of Prof. Campbell’s study and to download a PDF copy, follow this link.

Source: Campbell, John E., Writing that Wins: An Empirical Study of Appellate Briefs (July 31, 2017). The Colorado Lawyer, Vol. 46, No. 3, March 2017; U Denver Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3011605.


Reminder of new briefing requirement in the 2nd Circuit

The current issue of the Louisiana Bar Journal includes a short but worthwhile article for anyone practicing in the Louisiana Second Circuit. Under new Local Rule 15, all appeal briefs must include the following certification:

I hereby verify that all attachments to this brief have previously been duly filed and/or accepted into evidence in the lower court, to the best of my knowledge, information and belief. I understand that failure to comply with this local rule may result in the refusal to consider said attachments. WILLFUL FAILURE TO COMPLY WITH THIS LOCAL RULE MAY SUBJECT ME TO PUNISHMENT FOR CONTEMPT OF COURT

Failure to comply with this rule will result in rejection of your brief. See Local Rule 2-5Hal Odom, Jr., Focus on Local Practice: New Certification Required in 2nd Circuit, 65 La. B.J. 100 (Aug./Sept. 2017).

Of course, if you’re a regular reader of this blog, you already knew about this new rule. Still, Hal’s article is a good reminder.


Footnote not enough to preserve an issue

Some questions have easy answers, such as this one:

Q.    Can I preserve an issue for review by the Louisiana Supreme Court by reserving my right to do so in a footnote in my writ application?

A.    No. You need to address the issue in your assignments of error and your argument. Relegating it to a footnote won’t do. See Bonnette v. Conoco, Inc., 2001-2767, p. 10 (La. 1/28/03), 837 So. 1219, 1227.


The first principle of briefwriting

Here is a reminder of the importance of following court rules governing the form and content of briefs. Last Monday, Chief Judge Diane Wood of the U.S. Seventh Circuit issued a scathing order rejecting two appellees’ briefs—including one by U.S. Attorney General Jeff Sessions—for failure to strictly comply with the court’s local rule governing the content of the brief’s jurisdictional statement. To read the order, follow this link.

There’s a lesson here for lawyers practicing in Louisiana’s courts of appeal. Since 2014, Uniform Rule 2-12.4(3) has required the appellant’s brief to include a detailed jurisdictional statement, stating both the legal and factual bases for the court of appeal’s jurisdiction. Under this rule, a proper jurisdictional statement must state the following things:

  • the constitutional and statutory basis for the court to exercise appellate jurisdiction
  • the dates of the judgment appealed from and the order of appeal to establish the appeal's timeliness
  • specific information establishing that the judgment appealed from is an appealable judgment, including (as applicable) the following:
    • an assertion that the appeal is from a final, appealable judgment, including a record citation to any trial-court order designating the judgment as final and reasons for the designation of finality
    • an assertion that the appeal is from an interlocutory judgment or order which is appealable as expressly provided by law (hint: cite the statute or code article making it appealable)
    • an assertion of information establishing the court of appeal's jurisdiction on some other basis

In my experience, the majority of briefs that cross my desk include jurisdiction statements that fail to comply with this rule. I have to conclude that the briefwriters have not read and perhaps are not even aware of this rule. They are probably using other briefs as models for their own briefs without questioning whether the “model¨ actually complies with the rules.

My advice: Never, ever trust a “model” brief. For guidance on the form and content of your brief, read the Uniform Rules and the court of appeal’s local rules. It’s that simple, folks.

__________

p.s.  Here is a PDF copy of the Judge Wood’s order.


Yes, you can file a reply brief in the LASC

Can the applicant (after a writ grant) or an appellant in the Louisiana Supreme Court file a reply brief, responding to the brief of the respondent or appellee? The answer is “yes.” While LASC Rule VII makes no explicit provision for a reply brief, Rule VII § 11.1 allows parties to file “supplemental briefs on the merits” any time before the case is argued or submitted. Most lawyers use this rubric as authorization for a reply brief. Yesterday, I came across an LASC decision blessing this practice. In Shane v. Parish of Jefferson, the Court said, “The filing of a reply brief was intended to be included within the purview of ‘[s]upplemental briefs on the merits,’ as stated in this court’s Rule VII, § 11.1.” Shane v. Parish of Jefferson, 2014-2225, p. 8 (La. 12/8/15), 209 So. 3d 726, 734 (brackets by the Court).


New briefing requirement for the La. Second Circuit

If you practice in the Louisiana Second Circuit, here is something you need to know if you don’t want your brief rejected by the clerk of court. Beginning on May 31, every brief filed in the Second Circuit must include the following certification concerning attachments:

I hereby verify that all attachments to this brief have previously been duly filed and/or accepted into evidence in the lower court, to the best of my knowledge, information and belief.  I understand that failure to comply with this local rule may result in the refusal to consider said attachments. WILLFUL FAILURE TO COMPLY WITH THIS LOCAL RULE MAY SUBJECT ME TO PUNISHMENT FOR CONTEMPT OF COURT.

See La. 2d Cir. R. 15 (eff. May 31, 2017). Second Circuit Rule 2-5 has been amended to require the clerk of court to reject any brief that fails to comply with new Rule 15. This amendment, too, takes effect on May 31.


Negativity as a briefwriting strategy

Are negative themes in briefwriting more persuasive than positive themes? Often, they are. That’s the indication from a study described in a recent article by Prof. Kenneth Chestek. It’s available for free download on SSRN. Here’s the abstract:

Cognitive psychologists have identified a phenomenon they call the “negativity bias,” in which humans seem to remember and be affected by negative information more strongly than by positive information. What are the implications of this bias for legal writers? Should they focus on negative themes (describing the opposing side as bad) instead of positive ones (describing their clients as good and worthy)? More specifically, to trial judges fall prey to the negativity bias?

This article describes an empirical test in which 163 judges were asked to read different versions of a Preliminary Statement to a trial brief (some using positive themes, others using negative ones) to measure whether (and by how much) the judge’s perceptions of the parties were affected. The study concludes that, in many (but not all) cases, negative themes did seem to have more impact on the judicial reader.

Chestek, Kenneth D., Fear and Loathing in Persuasive Writing: An Empirical Study of the Effects of the Negativity Bias (April 17, 2017). Legal Communication & Rhetoric: JALWD, Vol. 14, 2017. Available at SSRN: https://ssrn.com/abstract=2953996.


Silly briefwriting conventions: Overuse of parenthetical shorthand names

Some briefwriting conventions are downright silly. One of the silliest is the compulsion to parenthetically define shorthand names for all persons and companies mentioned in a brief. For example, when the only Flintstone mentioned in a brief is Fred, you’ll see the first reference to him as “Fred Flintstone (‘Flintstone’).” Similarly, you’ll see “State Farm Mutual Automobile Insurance Company (‘State Farm’)” even when it’s the only State Farm company mentioned in the brief.

Where did this silly briefwriting convention come from? It seems to have come from the world of contract drafting. Contracts require defined terms, including definitions of the parties. Contract drafters often find it useful to create a defined shortened form of a party’s name. An easy way to do this is to put the defined term in quotation marks and parentheses after the party’s name. See Kenneth A. Adams, A Manual of Style for Contract Drafting § 1.62 (2d ed. 2008). People see this in contracts, conclude that it’s the “legal” way to write, and transfer the custom to briefwriting.

A brief is not a contract. In a brief, you don’t need to create defined shortened names for everyone when there’s no risk of reader confusion. If Fred Flintstone is the only Flintstone mentioned in the brief, refer to him by his full name the first time he appears—without the parenthetical “(‘Flintstone’)”—and after that, just refer to him as “Flintstone.” Everyone will know you’re talking about Fred. No one will wonder whether you’re talking about Wilma.

The same goes for companies. The exception is when you have, say, two State Farm companies mentioned in the same brief. In that instance, you may need to define shorthand names to avoid confusion:

  • State Farm Mutual Automobile Insurance Company (“State Farm Auto”)
  • State Farm Fire and Casualty Insurance Company (“State Farm Fire”)

Don’t take my word for it. Listen to what Bryan Garner and the late Justice Scalia said about this:

Give the reader credit for having a brain—and show that you have one, too. Don’t leave your common sense at the door. If your brief repeatedly refers to the Secretary of Transportation and mentions no other Secretary, it is silly to specify parenthetically, the first time you mention the Secretary of Transportation, “(hereinafter ‘the Secretary’).” No one will think that your later references to “the Secretary” denote the Secretary of Defense, or perhaps your own secretary.

Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges § 44, at 113 (2008). See also Bryan A. Garner, The Elements of Legal Style §§ 4.5 and 7.4 (2d ed. 2002).