Briefwriting tips

Writing for the ignorant reader

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.


In briefs, emotional language loses.

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.


How not to comply with word-limit rules

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].

The trick didn’t work. The Federal Circuit struck their brief and dismissed their appeal. And last Monday, the Supreme Court denied certiorari.

For legitimate methods to squeeze a brief under a page or word limit, read this post by Mark Herrmann.


Update on yesterday’s how-not-to-write post: The lawyer’s response to the show-cause order

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.”


Huh? (Another lesson in how not to write a brief.)

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.