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December 2013

New year, new rules.

As we say goodbye to 2013 and hello to 2014, let’s be reminded that significant amendments to Louisiana’s briefing rules are becoming effective. So here’s a suggestion about those old briefs that you use as models or templates for brief-writing: throw them away, because starting January 1, 2014, they will become obsolete.

Highlights of the new briefing rules include the following:

  • You’ll get more pages (31 legal-size pages instead of 28), but will have to include more stuff in the page limit (everything except the cover, table of contents, table of authorities, and certificate of service). So no more circumventing the page limit by loading argument into what are supposed to be non-argumentative elements of the brief.
  • A table of authorities will be now mandatory.
  • The jurisdictional statement will need to be tailored to the specific case. The old boilerplate citation to the Louisiana Constitution won’t do. Instead, your jurisdictional statement will have to prove (a) that the judgment is appealable, and (b) that the appeal is timely.
  • The statement of the case will be separate from the statement of facts.
  • A summary of the argument will be mandatory.

You can read the amendments themselves by clicking here, and can read the Louisiana First Circuit’s summary of the amendments by clicking here.

Also on January 1, an amendment to the Louisiana Fourth Circuit’s local rules becomes effective. The amendment concerns untimely requests for oral argument. Until now, if you blew the deadline to file a request for oral argument, you could always file a motion to reinstate oral argument, which would be routinely granted. Now, at least in the Fourth Circuit, your motion will have to explain why your request is tardy and whether opposing counsel has any objection.

So tonight, celebrate the New Year with champagne or your favorite sparkling non-alcoholic cider. Tomorrow, eat some black-eyed peas and cabbage for good luck and good fortune in the new year. And the day after tomorrow, update your form file by tossing your old Louisiana briefing forms.

A lesson in how not to write a brief

Many of us have seen briefs that seemed to be nothing but a collection of quotations strung together. Recently, an extreme example made its way to the U.S. Seventh Circuit in an immigration appeal. The 49-page brief contained only 5 original sentences. For the party whose counsel filed the brief, the outcome was a loss. A loss, suggested Judge Posner, that might have been avoided if the briefwriter had done some actual writing:

The Board’s opinion, and to a lesser extent that of the immigration judge, are flawed. But the inadequacy of the brief that her lawyer has filed in this court precludes our vacating the denial of asylum. The brief consists almost entirely of verbatim quotations either from the administrative record or from previous decisions of this court. The statement of facts consists almost entirely of quotations from the record, and the summary of argument consists entirely (not “almost entirely”) of an extended quotation from one of our previous decisions. The argument section of the brief consists of nothing but quotations from the record and from previous decisions, until the last few pages, which deal with the plaintiff’s alternative (and clearly meritless) claim for relief—withholding of removal. Most of the material in that section as well is quoted rather than original material, but there is a bit of interstitial material that appears to be original—though none elsewhere in the brief, excluding the table of contents and other purely formal matter. All in all, in a 49-page brief, if one excludes purely formal matter, there are only five original sentences. A brief so composed is not helpful to either the reviewing court or the client.

An inadequate brief often signals a desperately weak case. This is not a desperately weak case, but we cannot write a party’s brief, pronounce ourselves convinced by it, and so rule in the party’s favor. That’s not how an adversarial system of adjudication works.... We’re neither authorized nor equipped to write a lawyer’s brief for him.

The inadequacy of the brief in this case is especially unfortunate because the Board’s opinion and that of the immigration judge contain errors that have led to reversals of the Board in previous cases ....

Chen v. Holder, No. 13-1758 (7th Cir. Dec. 11, 2013). (Hat tip to Bob Markle for sending this along.)

In The Winning Brief, Bryan Garner teaches briefwriters to, well, write. “That means you’re doing more than merely stockpiling what others have said—even if those others happen to be judges.” The reason is simple. If your writing is just an assembly of quotations, it “won’t have a clear analytical line. How could it, if you’re just linking (or not even linking) quotation after quotation?”

There’s another reason why mere assemblies of quotations fail to persuade: that sort of writing cannot convey ethos, the character of the speaker or writer. To express your self to a reader, your writing must be your own. It must literally be self-expression. That’s how one human being persuades another. You don’t reach another person by spewing other people’s words. You reach another person by talking or writing in your own natural voice.