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.
On my other blog, I have a post today about two articles on paragraph building. They’re by Stephen V. Armstrong and Timothy P. Terrell, authors of Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing. That book costs $49. The two articles are free.
Fair is fair. Yesterday I criticized a petition for certiorari, filed in the U.S. Supreme Court, as being incomprehensible. It’s only fair to present the filing lawyer’s side of the story. So here is his response to the Court’s show-cause order, with some redactions (presumably to protect intellectual property). Hat tip to Lyle Denniston at the SCOTUS Blog for this.
Long story short: the client “insisted on articulating his basic argument ... in his own words ... right down to the client’s favored locutions and acronyms.” The resulting work product is “written in an unorthodox style and can be difficult to follow at times ....” Yep.
What do you think? Is this sanctionable conduct? Or is having the petition denied by the Court or rejected by the clerk punishment enough?
Update (23 Mar. 2015): A happy ending for the lawyer who filed this petition: the Supreme Court has discharged its show-cause order against him, with a reminder that lawyers “are responsible—as Officers of the Court—for compliance with the requirement of Supreme Court Rule 14.3 that petitions for certiorari be stated ‘in plain terms,’ and may not delegate that responsibility to the client.”
In contrast to the incomprehensible cert petition described in my last post, here is a lesson on conveying your message, not only with clarity, but also with heart. The instructor is Johnny Cash. The short version: prefer short, plain words.
Here is another lesson in how not to write. A couple of months ago, the U.S. Supreme Court not only denied a petition for certiorari; the Court ordered the lawyer who filed the petition to show cause “why he should not be sanctioned for his conduct as a member of the Bar.” This story has been covered by the WSJ Blog and by Josh Blackman’s blog.
So what got the lawyer in trouble? The Court hasn’t said. So I did a little research and located a copy of the petition. And Lord!, I don’t have a clue what he’s talking about. Here, for example, are the questions presented:
“Does the US Constitution, in legal decisions based on 35 USC §§ 101/102/103/112,
- require instantly avoiding the inevitable legal errors in construing incomplete and vague classical claim constructions – especially for “emerging technology claim(ed invention)s, ET CIs” – by construing for them the complete/concise refined claim constructions of the Supreme Court’s KSR/ Bilski/ Mayo/ Myriad/ Biosig/ Alice line of unanimous precedents framework, or does the US Constitution for such decisions
- entitle any public institution to refrain, for ET CIs, for a time it feels feasible, from proceeding as these Supreme Court precedents require – or meeting its requirements just by some lip-service – and in the meantime to construe incomplete classical claim constructions, notwithstanding their implied legal errors?”
I thought maybe he had violated a rule requiring cert petitions to be written in English. But the good folks at the WSJ Blog think the problem may lie in footnote 30 (page 37), where the author credits his client “for significant contributions to this Petition.” That footnote appears to violate the Court’s guidelines, which dictate that
names of non-lawyers such as research assistants, law students, and advisors may not appear on the cover under any circumstances; nor are they to be credited with having contributed to the preparation of the petition either in the text, in a footnote, or at the conclusion of the petition.
To me, this petition offers a more important lesson in how not to write a brief. In legal writing, the prime directive is clarity. You must write so that the reader can understand what you’re saying. If you fail to do that, everything else you do is wasted effort.
Today the Louisiana Supreme Court denied rehearing in a case. What makes this ruling notable are the concurring opinions of Justices Knoll and Crichton, who expressed offense at the language and a pair of illustrations included in the application. If you’d like to see what not to do when applying for rehearing, here is an excerpt from the application.
If you’re writing a brief for a Louisiana court of appeal or the U.S. Fifth Circuit, you must include a summary of the argument. The same goes for a writ application to the Louisiana Supreme Court. But the rules offer little guidance on how to write the summary except to make it “succinct,” “clear,” and “accurate,” and to avoid merely repeating the argument’s point headings.
If you’re looking for tips on how to write the summary of the argument, you may be interested in Judith Fischer’s article on that topic, Summing It Up with Panache: Framing a Brief’s Summary of the Argument, which you can download on SSRN. In her article, Fischer examines the competing summaries of arguments from the briefs in 20 U.S. Supreme Court cases, analyzing the techniques used by the briefwriters to grab the Court’s attention.