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May 2019

Kairos—or what briefwriters can learn from Dr. John

I been in the right place, but it must have been the wrong time.
Dr. John

Here are three principles of briefwriting that I try to follow:

  1. Every part of a brief should contribute to persuasiveness.
  2. Not every part of a brief should be argumentative. Argument should be confined to, well, the argument (and summary of the argument).
  3. Argument in the wrong place (for example, in the jurisdictional statement) detracts from persuasiveness.

Probably everyone would agree with item # 1. Some people may need convincing on items # 2 and #3, so I’ll give it a try.

Way back when, Aristotle described four modes for creating persuasive arguments: ethos, logos, pathos, and kairos. Ethos refers to the credibility and trustworthiness of the one giving the argument. Logos refers to logic, to the syllogistic thinking we all learned in law school. Pathos refers to establishing common ground with listener or reader. See Linda L. Berger and Kathryn M. Stanchi, Legal Persuasion: A Rhetorical Approach to the Science 5 (2018). As the title of this post suggests, I want to talk about kairos and how that figures into briefwriting.

Kairos refers to the appropriateness of timing and setting for the argument. Id. To paraphrase Dr. John, it means not only saying the right thing, but saying it at the right time. According to the editor of this web page, “Kairos ... is based on the thought that speech must happen at a certain time in order for it to be most effective. If rhetoric is to be meaningful and successful, it must be presented at the right moment, or else it will not have the same impact on ... the audience.”*

I’ll take it a step further and propose this: In a brief, argument in the wrong place or at the wrong time detracts from persuasiveness. Why is that? Because when the reader is reading, say, the jurisdictional statement, she is not receptive to argument; she just wants to know whether the court has jurisdiction over the appeal. So if she hits a patch of argumentative language in the jurisdictional statement, she filters that out or skims past it. As a briefwriter, I don’t want my reader to get in the habit of filtering or skimming. I want to encourage the reader to read every word; I want to get her in the habit of nodding in agreement or, at least, thinking that every word is worth reading.

Every part of the brief can be persuasive if it does exactly what it’s supposed to do, and does so without inflicting pain or boredom on the reader. Doing this builds ethos by establishing the briefwriter’s knowledge, credibililty, and trustworthiness. It also builds pathos by showing that the briefwriter understands and is trying to meet the reader’s needs. Putting argument where it doesn’t belong has the opposite effect.

In the coming days, I hope to write a series of posts on how to make the non-argumentative parts of the brief persuasive. Well, maybe not the certificate of service, but everything else.

*Yes, I know it’s just Wikipedia. But the statement makes sense, and I don’t have a better source handy at the moment: my copy of Aristotle’s Rhetoric is at home.

New Second Circuit briefing rules effective 5/31/19

If you practice in the Louisiana Second Circuit, be aware of two new briefing rules that become effective on May 31.

First, if your brief has any attachments, it must include a certification that “all attachments to this brief have previously been duly filed and/or accepted or proffered into evidence in the lower court ....” For the full text of the required certificate, see new Local Rule 15.

Second, if your brief has no attachments, it must include a certification stating, “I hereby verify that there are no attachments required with this brief.” See new Local Rule 15.1.

I don’t know and won’t speculate what led the court to make these rules. I do know from experience that the Second Circuit clerk’s office often rejects briefs that fail to comply with all of the rules, including local rules. See Local Rule 2-5. Starting May 31, any brief filed with the Second Circuit will have to include one of these certifications. If it doesn’t, the lawyer submitting the brief will run the risk of having the brief rejected.

Speaking of attachments: the Second Circuit has not opted out of Uniform Rule 2-12.4(B)(1). That rule requires that the trial court’s judgment and reasons for judgment (written or transcribed) be attached to the appellant’s brief. The rule doesn’t expressly prohibit other attachments, but my experience in other circuits is that any other attachments are often either removed at intake or counted against the page limit.

A third rule effective on May 31 concerns borrowing the record. Under new Local Rule 2-8.1, the court will not allow lawyers to borrow the record after the case has been submitted for decision except for the purpose of preparing an application for rehearing. If this rule is applied literally, then the court will not loan out the record for a writ application to the Louisiana Supreme Court. Related Rule 2-8.2 (also effective May 31) requires counsel to return the record no later than with the filing of that party’s brief.

Complying with this rule should not be a problem. When you borrow the record, immediately make a copy: either on paper or in PDF. Once you have your own copy of the record, immediately return the original to the court. If you do these things, you won’t have to worry about returning the record when you file your brief, and you won’t have to re-borrow the record for rehearing or a La. Supreme Court writ application.

For “Bridging the Gap” participants (and anyone else interested)

This morning I gave my annual 1-hour presentation on appellate practice at the Louisiana State Bar Association’s Bridging the Gap seminar for new lawyers. For them and anyone else who may be interested, here are PDFs copies of

While I preached against following forms, I’m happy to share samples of pleadings, writ applications, and other appellate filings; you can find them by following this link. A word of caution: the rules may have changed since these were written, and may change by the time you actually consult any of these samples. So check the rules, and if you see a conflict between the sample and a rule, follow the rule.