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).
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.
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.
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).
Here’s a tip for U.S. Supreme Court practice that should be obvious: if the Court grants certiorari, brief the issue raised in your cert. petition. If you brief a different issue, your writ will be dismissed as improvidently granted. That’s what happened yesterday in Visa, Inc. v. Osborn, c/w Visa, Inc. v. Soumbos:
These cases were granted to resolve “[w]hether allegations that members of a business association agreed to adhere to the association’s rules and possess governance rights in the association, without more, are sufficient to plead the element of conspiracy in violation of Section 1 of the Sherman Act . . . .” Pet. for Cert. in No. 15-961, p. i, and No. 15-962, p. i. After “[h]aving persuaded us to grant certiorari” on this issue, however, petitioners “chose to rely on a different argument” in their merits briefing. City and County of San Francisco v. Sheehan, 575 U. S. __, __ (2015) (slip op., at 7). The Court, therefore, orders that the writs in these cases be dismissed as improvidently granted.
John Balestriere has an interesting post at Above the Law on writing persuasively for the reader who knows far less about your case than you do—that is, every judge, judicial law clerk, and court staff attorney who reads your brief. He reminds us that those readers have many more cases on their plates than we have on ours, and that the time they can spend reading a brief is measured in minutes, not hours.
For more on this topic, read this October 2014 post on the curse of knowledge.
Some political scientists recently published a study on the use of emotional language in briefs filed in the U.S. Supreme Court. After controlling for a variety of factors, they concluded that overtly emotional language correlates to losing the case. Here’s an excerpt from the abstract:
We argue emotional language conveys a lack of credibility to justices and thereby diminishes the party’s likelihood of garnering justices’ votes. The data concur.... [W]e find that parties who employ les emotional language in their briefs aree more likely to win a justice’s vote, a result that holds even after controlling for other features correlated with success, such as case quality. These findings suggest advocates seeking to influence judges can enhance their credibility and attract justice’s votes by employing measured, objective language.
Ryan C. Black, Matthew E.K. Hall, Ryan J. Owens, and Eve M. Ringsmuth, The Role of Emotional Language in Briefs Before the U.S. Supreme Court (December 15, 2015). To read the abstract and to download the study supporting the authors’ conclusions, following one of these links at SSRN: http://ssrn.com/abstract=2703875 or http://dx.doi.org/10.2139/ssrn.2703875.
Most appellate courts have rules limiting the number of pages or words in a brief. When a brief is a bit too long, lawyer-editors have a number of techniques for making the brief fit the applicable limit. Some are good. Others are not so good.
An example of the latter comes from the Federal Circuit’s decision last spring in Pi-Net International, Inc. v. JPMorgan Chase & Co., No. 2014-1495 (Fed. Cir. Apr. 20, 2015), cert. denied sub nom. Arunachalam v. JPMorgan Chase & Co., No. 15-691, — U.S. — (Jan. 11, 2015) (PDF copy here). There, the appellants decided to squeeze their brief under the 14,000-word limit by removing the spaces between words. For example, instead of providing this citation:
Thorner v. Sony Computer Entm’t Am., LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012) [14 words]
they provided this one instead:
Thorner.v.SonyComputerEntm'tAm.LLC,669F.3d1362,1365(Fed.Cir.2012) [1 word].
For legitimate methods to squeeze a brief under a page or word limit, read this post by Mark Herrmann.