Briefwriting tips

Are briefing rules THAT important?

Both the Federal Rules of Appellate procedure and the Louisiana Uniform Rules for Courts of Appeal include detailed rules governing the form and content of briefs. Both sets of rules contain, among other things, detailed requirements for the brief’s jurisdictional statement. In essence, both sets of rules require the brief only only to say that the court has jurisdiction, but also to prove jurisdiction, with citations to specific statutes establishing jurisdiction and citations to the parts of the record establishing jurisdictional facts (e.g., finality of judgment being appealed, timeliness of the appeal).

What happens when parties fail to heed these rules? In Louisiana, the offending party may have its brief rejected and may be ordered to file a corrected brief. The same goes in the U.S. Fifth Circuit. We’re relatively lucky. The U.S. Seventh Circuit is less tolerant, especially when it comes to jurisdictional statements in both appellants’ and appellees’ briefs. Consider these cases:

  • In a diversity case, the appellant’s jurisdictional statement failed to properly allege the citizenshihps of two party corporations. The appellees’ jurisdictional statement failed to correct the appellants’ error, saying instead that the appellant’s statement was complete. Counsel for both sides were publicly reprimanded in a published opinion. Cincinnati Ins. Co. v. Eastern Atlantic Co., 260 F.3d 742, 747–48 (7th Cir. 2001).
  • A pro se plaintiff-appellant’s brief failed to include a jurisdictional statement. The defendants-appellees’ jurisdictional statement said only that the district court had diversity jurisdiction but failed properly state the parties’ citizenships. The court ordered the defendants-appellees’ counsel to show cause why they shouldn’t be sanctioned. Meyerson v. Harrah's East Chicago Casino, 299 F.3d 616, 617–18 (7th Cir. 2002).
  • Both sides’ jurisdictional statements failed to allege the parties’ citizenships. Although the court didn’t sanction them, it described their “insouciance about jurisdiction” as “unprofessional.” Wise v. Wachovia Securities, LLC, 450 F.3d 265, 266–67 (7th Cir. 2002).
  • Finding both sides’ jurisdictional statements to be insufficient, the court described their briefing as “malpractice” and ordered both sides’ counsel to show cause why they shouldn’t be sanctioned. Smoot v. Mazda Motors of America, Inc., 469 F.3d 675, 676–78 (7th Cir. 2006).
  • In one appeal, the appellee’s brief said that the appellant’s jurisdicitonal statement was “correct,” but failed to state whether it was “complete.” In another appeal, the appellee’s brief said that the appellant’s jurisdictional statement was “complete,” but failed to state whether it was “correct.” Both briefs violated a local rule requiring the appellee to state whether the appellant’s jurisdictional statement was both complete and correct. The chief judge ordered both appellees’ briefs to be stricken and ordered the appellees to file new briefs with adequate jurisdictional statements. Baez-Sanchez v. Sessions and Bishop v. Air Line Pilots Ass’n, 862 F..3d 638 (7th Cir. 2017).

Invaluable advice for LASC writ applications

I recently came across an old Louisiana Bar Journal article with invaluable advice for anyone thinking about applying for writs to the Louisiana Supreme Court: Get That Writ: Civil Writ Practice Before the Louisiana Supreme Court, 48 La. B.J. 120 (Aug. 2000), by Isaac H. Ryan and J. Todd Benson. If you’ve never read this article before, do yourself a favor: download it and read it.

One important thing the article discusses is the Louisiana Supreme Court’s own perception of its role as one of developing the law rather than correcting errors. An understanding of that role is essential in persuading the court that your case is the one out of a hundred (give or take) worthy of the court’s attention. The Louisiana Supreme Court itself discussed its own view of its role in Boudreaux v. State, DOTD, 2001-1329, p. 3 and id. nn. 5–6 (La. 2/26/02), 815 So. 2d 7, 9–10 and id. nn. 5–6.

Also worth reading are cases in which the Louisiana Supreme Court overcomes its reluctance to exercise its supervisory jurisdiction over other Louisiana courts. The theme in these cases is the Supreme Court’s respect for the independence of other courts in fulfilling their roles and to avoid usurping appellate jurisdiction not conferred on the Supreme Court by the Louisiana Constitution. These cases include the following:

And of course, anyone filing a writ application in the Louisiana Supreme Court must know and follow La. Supreme Ct. Rule X § 1(a).


How to write a statement of the case

Under federal rules governing briefs, the statement of the case includes the statement of facts. See Fed. R. App. P. 28(a)(6). But in Louisiana appellate courts, the Uniform Rules distinguish the statement of the case from the statement of facts. See Unif. R. 2-12.4(A)(4) and (7). In this post, I’ll try to explain what the statement of the case should do and, along the way, distinguish it from the statement of facts.

Under Uniform Rule 2-12.4(A)(4), the statement of the case must state “the nature of the case, the action of the trial court and the disposition ....” In his book Winning on Appeal, Judge Ruggero Aldisert offered this guidance for writing a statement of the case:

A succinct statement of the case in your brief tells the appellate court “how you got here.” In this portion of the brief you verify the procedural history of the case by answering these questions:

  • Who: Who won in the trial court? Who is taking the appeal?
  • What: What is the general area of law implicated in the appeal, and what specifically are the issues?
  • Where: Where has the case been so far? A trial court, administrative agency or intermediate court?
  • When: When was the alleged error committed? During the pre-trial, trial or post-trial stage?
  • How: How was the case resolved? By summary judgment, a directed verdict, a jury verdict or a nonjury award?

Ruggero J. Aldisert, Winning on Appeal § 9.1, at 147 (rev. 1st ed.).

In addition to these points, remember where the statement of the case fits into the brief’s structure: it immediately precedes the assignments of error and issues for review. So in addition to what’s required by the Uniform Rules, the statement of the case should provide context to help the reader understand the assignments of error and issues for review. If done right, it helps the reader view the case from your perspective without being overtly argumentative.

For an example of a statement of the case, follow this link. This example comes from a brief medical-malpractice case (all names changed). The marginal comments point out where the writer tried to convey the information required by Rule 2-12.4 and suggested by Judge Aldisert. The writer also attempted to provide enough information for the reader to understand—on the first read—the assignments of error and issues for review, which immediately followed. It includes a broad overview of the case’s facts; the details (with supporting record citations) are in the statement of facts.


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.

 


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.”


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.