Amendments to federal rules effective Dec. 1

Yesterday, December 1, was the effective date for amendments to federal rules of practice, including the Federal Rules of Appellate Procedure. The FRAP amendments are minor and concern only responses to petitions for en banc hearing or rehearing and petitions for panel rehearing. Under the new rules, responses are subject to the same length limits as the petitions: 3,900 words if produced by computer and 15 pages if handwritten or typewritten. To download a copy of the FRAP amendments, follow this link.

For information about amendments to other sets of federal rules, follow this link.

Legalese makes you look inferior

Lawyers who communicate in plain, straightforward language are perceived as more intelligent and more capable than those who attempt to communicate in legalese. Now there’s another study confirming this fact. The study is described in this blog post by the British Psychological Society. Here’s the money quote:

[A]ccording to a series of studies published in Organizational Behavior and Human Decision Processes, those who are of low status within a group are also predisposed towards jargon-filled language. Zachariah Brown at Columbia University and colleagues found that these people appear to want to compensate for their lowly position by using language that is often associated with high status. 

If you’re interested in reading the study itself (and don’t mind shelling out $39.95 for it), follow this link.

For “Bridging the Gap” participants

This morning, I gave a one-hour CLE presentation on appellate practice for the Louisiana State Bar Association’s Bridging the Gap webinar, a program for new lawyers. For those who attended the program (and anyone else who may be interested), here are some links and things to supplement my written materials:

The science behind plain language

Most of us know that plain language is more persuasive than legalese. But did you know that there are scientific studies proving that point? Some of that science is summarized in an article I’ve written for the upcoming 2020 volume of The Scribes Journal of Legal Writing. To read the article, just follow this citation link: Raymond P. Ward, The Science Behind Plain Language, 19 Scribes J. Legal Writing 181 (2020).

Hurricane Delta court closures

The Louisiana Supreme Court and Louisiana First, Third, Fourth, and Fifth Circuits have announced closures in anticipation of Hurricane Delta. Any filings due while the particular court is closed will be timely if filed when the court reopens. For the Louisiana Fifth Circuit, reopening is scheduled for Tuesday, October 13; for the other courts, reopening is scheduled for Monday, October 12. Here are the details:

I haven’t seen an order from the Louisiana Second Circuit, so I assume they’re conducting business as usual today and tomorrow.

Friendly advice from a judge to would-be amici

Here’s recent opinion by Judge Michael Y. Scudder, Jr. of the U.S. Seventh Circuit describing what is and is not helpful in an amicus brief: Prairie Rivers Network v. Dynegy Midwest Generation, LLC, No. 18-3644 (7th Cir. Sept. 24, 2020) (Scudder, J., in chambers)

  • Not helpful: briefs that merely repeat a party’s argument; briefs that “serve only as a show of hands on what interest groups are rooting for what outcome.”
  • Helpful: “A true friend of the court will seek to add value to our evaluation of the issues on appeal.” Ways to do this include the following:
    • Offering a different analytical approach to the legal issues before the court;
    • Highlighting factual, historical, or legal nuance glossed over by the parties;
    • Explaining the broader regulatory or commercial context in which a question comes to the court;
    • Providing practical perspectives on the consequences of potential outcomes;
    • Relaying views on legal questions by employing the tools of social science;
    • Supplying empirical data informing one or another question implicated by an appeal;
    • Conveying instruction on highly technical, scientific, or specialized subjects beyond the ken of most generalst federal judges;
    • Identifying how other jurisdictions—cities, states, or even foreign countries—have approached one or anther aspect of a legal question or regulatory challenge.

In short, “an amicus curiae brief should be additive—it should strive to offer something different, new, and important.”

La. Third Circuit reopened

As most everyone knows, the Louisiana Third Circuit has been closed in the aftermath of Hurricane Laura. (See this August 31 blog post.) Starting today, the Third Circuit is now reopened. Any filings that were due between August 31 and October 1, 2020 will be deemed timely if filed by October 8, 2020. To download a copy of the court’s reopening order, follow this link.)

Theory of briefwriting: persuasion

This is the first of what I hope will be a series of blog posts on my theory of briefwriting. It’s fine to offer tips for writing better briefs. I hope to go a little beyond that by laying a foundation for any tip that I might offer: the “why” behind every “what to do.”

The best place to start is the purpose of an appellate brief. That sole purpose is persuasion, specifically to persuade the judges to reverse, vacate, modify, or affirm the judgment being appealed. Every tip for briefwriting should serve the purpose of making the brief more persuasive.

Supporting authority:

Briefs are written for one audience and one audience only: judges and their law clerks.... You write to persuade a court, not to impress a client. You write to persuade a court to your point of view; at a minimum, you write to convince the court to grant oral argument in your case. The key word is “persuasion.” If a brief does not persuade, it fails.... As you write prop a sign, literally or figuratively, on your desk that asks, “Will this brief persuade the reader?”

Persuasion is the only test that counts. Literary style, massive displays of scholarship, citations that thunder from the ages, and catchy phrases are uniformly pointless if the writing does not persuade.

Tessa L. Dysart, Leslie H. Southwick, and Ruggero J. Aldisert, Winning on Appeal 15 § 2.1 (3rd ed. 2017).

The corollary: Every choice you make as a briefwriter should be made with the purpose of making the brief more persuasive. This goes for everything from issue selection and argument formulation to seemingly mundane things like typeface and document design. If you make a choice for any other reason, then at best, you’re missing an opportunity to make your brief more persuasive. At worst, you’re choice may even defeat the purpose of persuasion.