Briefwriting tips

Don’t recycle your trial-court brief in the appellate court

Last week, the U.S. Third Circuit penalized a lawyer for filing an appellate brief that, in the court’s view, was no more than a “cut-and-paste” version of his district-court brief. Conboy v. U.S. Small Business Admin., No. 20-1726 (3d Cir. Mar. 19, 2021). The same lawyer responded to a motion for sanctions in the Third Circuit by recycling his argument against sanctions in the district court. Id., slip op. at 8. The court faulted the lawyer “for recycling meritless arguments without engaging the District Court’s analysis.” Id., slip op. at 9. Attached to the court’s opinion are redlines showing the differences (or lack of them) between the lawyer’s district-court brief and his Third Circuit filings.

From time to time, probably all of us have recycled trial-court arguments for appellate briefs and writ applications. When you do that, make sure to adapt them for the appellate court. The lawyer in Conboy didn’t do that. Remove stuff that has become irrelevant or moot, and add whatever is necessary to respond to the district court’s judgment or your opponent’s argument. Uncritical copying and pasting is not a good way to win an appeal; in some courts (like the U.S. Third Circuit), the result may be worse than merely losing the appeal.

I’ll close this post with some closing words from the Third Circuit:

It’s not easy to become a lawyer. The practice of law is challenging, and even the best lawyers make mistakes from time to time. So we err on the side of leniency toward the bar in close cases. But the copy-and-paste jobs before us reflect a dereliction of duty, not an honest mistake.

 


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).


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.”


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.


The Indigo Book: an alternative citation guide

For years, I’ve been using the ALWD Guide to Legal Citation as an alternative to the little-loved Bluebook. But lately I came across another possible alternative: The Indigo Book, a free on-line citation guide. It’s recommended by our friends at the law profs’ Appellate Advocacy Blog and is definitely worth bookmarking.

Of course, if you’re citing Louisiana cases in a Louisiana state court, you should ignore the citation guides and, instead, follow the Louisiana Supreme Court’s vendor-neutral citation rule.


It’s one space, not two, between sentences.

Underwood

On this blog, I try to stay away from controversial issues. But sometimes progress requires controversy. So I’m here to give sad news to those who still put two spaces between sentences: the war is over; the one-spacers have won. MS Word now rightly flags two spaces as an error. (Hat tip to 600 Camp.)

I’ve been fighting this battle for years on my now-retired legal-writing blog. Long story short: your computer is not an Underwood typewriter. Therefore, the rules you learned in typing class don’t apply to word processing on a computer. That Underwood you learned to type on was capable of producing only mono-spaced text. The two-space rule you learned in high school was for mono-spaced text. Unless you’re a Luddite using Courier font, the text you produce with Word or WordPerfect is variably spaced, so the rules you learned for mono-spaced text don’t apply. (By the way, the same goes for ALL CAPS and underlining. If you’re still doing either of those things, please stop.)

See also these blog posts from 8 April 2014, 17 August 2011, 25 January 2011, 23 December 2006,  and 30 October 2006.


Are longer briefs and cross-appeals helpful?

For appellate lawyers looking for a diversion from the COVID-19 emergency, here is an article that bucks some of the conventional wisdom on appellate practice: Inputs and Outputs on Appeal: An Empirical Study of Briefs, Big Law, and Case Complexity, by professors Adam M. Samaha, Michael Heise, and Gregory C. Sisk. The article reports the results of a study of briefs and opinions in civil cases in  in the federal Second, Eighth, and Ninth Circuits. About two-thirds of the article describes the authors’ methodology, which will be more understandable to statisticians than to lawyers. The article is just a draft; it will undergo some vetting before being published. With that caveat, two of the authors’ conclusions jumped out as contrary to conventional wisdom.

First, in briefing, shorter is not necessarily better. To the contrary: the longer the brief, the greater the chances of reverse. The authors caution that this finding does not mean that prolixity is persuasive. “It remains possible,” they caution, “that the appellant brief length is simply a better proxy for the unobserved vulnerability of trial-level decisions than are our measures of complexity and our controls.... So we are not in a position to recommend that lawyers start writing longer briefs with no other measure of exposition quality. At the same time, we have no evidence that shorter briefs are more effective.” My suggestion: make your brief as long as it has to be: no longer, no shorter.

Second, a cross-appeal (or in Louisiana, an answer to the appeal) is not a good strategy for an appellee to obtain an affirmance. To the contrary, the presence of a cross-appeal correlates positively with reversal, but not necessarily in the cross-appellant’s favor. This, in itself, shouldn’t be surprising. As the authors point out, “Once a cross-appeal is lodged, both sides are attacking the trial court in some respect.” They also caution that, in itself, the cross-appeal may not be the cause of reversal; it may be that attorneys file cross-appeals in cases where the risk of reversal is already high. My suggestion: don’t take a cross-appeal or answer the appeal with the idea that you’ll increase the chance of affirmance by compromise decision. The data suggests that, faced with cross-appeals, appellate judges do not compromise by simply affirming; instead they’re more likely to reverse—and the direction of the reversal may not be in the cross-appellant's favor.


Why plain English is more persuasive than legalese

Every decent book on legal writing or writing in general advises you to strive for simplicity: short words, easy-to-follow sentence structure, coherent paragraphs, etc. Today, most lawyers probably know that plain language fosters effective communication: the reader is more likely to understand what the writer is trying to say. If the only thing that writing in plain language did were to make the message easier to understand, that would be reason enough to write plainly.

But for lawyers whose business is persuasion, the importance of plain language is more profound. Readers judge the character and intelligence of the lawyers themselves by the quality of their writing. They associate plain language with intelligence and credibility, and they associate foggy, needlessly complicated writing with a lack of intelligence and credibility.

This fact was shown years ago in a study by Robert W. Benson and Joan KesslerLegalese v. Plain English: An Empirical Study of Persuasion and Credibility in Appellate Brief Writing, 20 Loy. L.A. L. Rev. 301 (1987). In their study, they asked judges and court staff attorneys to rate two versions of the same paragraph: one in legalese and the other in plain English. The readers tended to rate the legalese version as unconvincing and unpersuasive. They also tended to rate the authors of the legalese passages as being ineffective advocates from non-prestigious law firms. In other words, they formed opinions about not only the writing, but about the credibility of the author.

A 2006 study by psychologist Daniel M. Oppenheimer confirmed that readers tend to negatively evaluate the authors of needlessly complicating text. Consequences of Erudite Vernacular Utilized Irrespective of Necessity: Problems with Using Long Words Needlessly, 20 Applied Cognitive Psychology 139 (2006). In this study, groups of readers were given different versions of various writings, one in simple language and the other in more complicated language. The readers consistently rated the writers of the more complicated version as less intelligent. Oppenheimer’s conclusion: “write clearly and simply if you can, and you’ll be more likely to be thought of as intelligent.”

Why are plain-language writers thought of more highly than writers of needlessly complicated language? Oppenheimer’s study suggests that the answer is in “processing fluency. Simpler writing is easier to process, and studies have demonstrated that processing fluency is associated with a variety of positive dimensions,” including truth, confidence, and liking. Daniel Kahneman describes the same idea as “cognitive ease,” as opposed to “cognitive strain.” (See my last post.) According to Kahneman, anything that contributes to cognitive ease makes the reader more likely to believe the message and trust the messenger. One thing that can contribute to cognitive ease is plain, simple language. Complicated language has the opposite effect, causing the reader to experience cognitive strain, making the reader more vigilant and suspicious of the message and the messenger.

There’s a link between these modern psychological studies and the ancient writings of Aristotle on persuasion. According to Aristotle, ethos—the character of the speaker—is critical to persuasion. The speaker (or today, the writer) gains the audience’s trust by creating the impression that he or she is a person of intelligence and truthfulness. This impression can be made through the argument itself. E.g., Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 19 (4th ed. 1999). The modern-day psychological studies show that plain language builds ethos; it makes the writer appear more intelligent and credible. This, in turn, makes the reader more disposed to accept the argument.


Fonts are more important for persuasion than you think.

Everyone should know that an attractive, highly legible font makes a good impression on the reader. But can font selection work on a deeper level, making your brief either more or less persuasive? It can.

This insight comes from a book I’ve been reading by Daniel Kahneman, Thinking, Fast and Slow. In one chapter, Kahneman describes the concepts of cognitive ease versus cognitive strain. Cognitive ease describes the reader’s state when the reader feels that the message is familiar, easy to accept, and true. Cognitive strain describes the opposite state, when the reader feels that the message is unfamiliar and more difficult to accept. As Kahneman describes it, “When you are in a state of cognitive ease, you are probably in a good mood, like what you see, believe what you hear, trust your intuitions, and feel that the current situation is comfortably familiar.” On the other hand, “[w]hen you feel strained, you are more likely to be vigilant and suspicious ....”

Many factors can contribute to the reader’s cognitive ease, including the reader’s good mood, sense of familiarity (the feeling, “I knew that”), and having been primed. Another factor is clear display: a message printed in a clear font on high-quality paper. Anything that you do to foster cognitive ease and reduce cognitive strain will make your message more persuasive.

One way to foster cognitive ease is to make the writing as legible as possible. This means using the highest quality, most legible font available, printed in an easily readable size on high-quality paper. Experiments have shown that a sentence printed in a highly readable font is more likely to be believed than the same sentence written in a less legible font.

That’s what Kahneman suggests. Here’s my additional suggestion: For first drafts, use an ugly, less legible font (such as Courier); wait for the final draft before converting to a gorgeous font. Why? Because when you are editing a first draft, you don’t want cognitive ease; you want cognitive strain. You want to induce skepticism and vigilance in your editors (including yourself). 

Kahneman describes an experiment where subject were given a set of three brain teasers to solve. Half of the subjects got the puzzles in a legible font; the other half got the same puzzles in a small font with poor contrast. The difference in the error rates was striking: 90% of subjects who got the puzzles in a legible font made at least one mistake; the error rate dropped to 35% when the font was barely legible.

So if you want your editors to read your drafts with a critical eye, don’t make the drafts impossible to read, but do make them a little harder to read than the final product. Put them in Courier. After the draft has been thoroughly edited, convert it to the best font available before finalizing.

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p.s. (30 Aug. 2019): Several years ago, I wrote an article suggesting the use of ugly fonts for early drafts. Here’s a link to the PDF.