Briefwriting tips

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.


Jurisdictional statements in applications for a supervisory writ

In my last post, I talked about the jurisdictional statement in an appellant’s brief. Today, the topic is the jurisdictional statement in an application for a supervisory writ.

Jurisdictional statements in writ applications are governed by Uniform Rule 4-5(C)(2). This rule is not as detailed as Rule 2-12.4(A)(3), which governs jurisdictional statements in briefs. Rule 4-5(C)(2) just says that the writ application must include “a concise statement of the grounds on which the jurisdiction of the court is invoked ....” Still, by analogizing to Rule 2-12.4(A)(3), we can conclude that the jurisdictional statement in a writ application must accomplish at least one thing: it must prove that the court of appeal has supervisory jurisdiction to review the judgment at issue. This usually means proving (not just saying) hat the writ application is timely under Uniform Rule 4-3.

Now, timeliness of a writ application can get complicated because it is determined by two variables: (1) notice of judgment as determined by La. Code Civ. P. art. 1914, and (2) the return date set by the trial court for filing the writ application. For tips on navigating this sometimes tricky terrain, see A Writ in Time (51 La. Bar J. Feb./Mar. 2004). Generally, the writ application must be filed within the return date set by the trial court, and the return date set by the trial court must be no more than 30 days after notice of judgment as determined by Article 1914.

Getting back to the topic of this post: the jurisdictional statement in the writ application must do the following things:

  1. Establish the date that notice of judgment occurred under Article 1914.
  2. Prove that the notice of intent was filed timely, that is, no more than 30 days after notice of judgment under Article 1914.
  3. Establish the return date set by the trial court for filing the writ application.
  4. State (truthfully!) that the writ application itself was filed within the return date set by the trial court.

Each of the above four things should be proved by a citation to a specific page in the appendix to the writ application. For example, if the ruling in open court constituted notice of judgment, your writ application should include the minute entry or hearing transcript reflecting the judge’s ruling in open court, and your jurisdictional statement should cite the pages in the appendix where the court can find that transcript page or minute entry. If the judge ordered the judgment to be reduced to writing, your writ application should include documentation of that order (usually a hearing transcript, sometimes a minute entry), and your jurisdictional statement should cite the page in the writ application’s appendix where that order can be found. Your jurisdictional statement should also include a citation to the pages in the appendix where the court of appeal can find the filed-stamped copy of your notice of intent to seek a supervisory writ and the trial court’s order setting the return date.

In short, the jurisdictional statement should include all information and all appendix citations that the court of appeal needs to conclude that the writ application was filed timely under Rule 4-3.


How to write a jurisdictional statement

In Louisiana appellate practice, the appellant’s brief and the relator’s writ application must include a jurisdictional statement. To get this simple part of a brief or writ application right, you need to know the governing rules and—equally important—the purpose of the jurisdictional statement.

In both a brief and a writ application, the jurisdictional statement serves one and only one purpose: to prove (not just say) that the court of appeal has jurisdiction. Proof of jurisdiction is like proof of any other argument: it requires citation of legal authorities and assertion of facts supported by record citations (or, for a writ application, citations to specific pages in the appendix).

In an appeal brief, proof of appellate jurisdiction means proof that (a) the judgment to be reviewed is appealable; and (b) the appeal was taken timely under the applicable law. Don’t take my word for it: read Uniform Rule 2-12.4(A)(3):

The brief of the appellant shall contain, under appropriate headings and in the order indicated:

...

(3) a jurisdictional statement setting forth the constitutional and statutory basis for the court to exercise appellate jurisdiction, with citations to applicable provisions. The jurisdictional statement shall also include the dates of the judgment appealed and of the motion and order for appeal to establish the timeliness of the appeal and the following, as applicable:

(a) an assertion that the appeal is from a final appealable judgment and, if the appealability is dependent upon a designation by the trial court, a reference to the specific page numbers of the record where the designation and reasons for the designation are to be found, or

(b) an assertion that the appeal is from an interlocutory judgment or order which is appealable as expressly provided by law, or

(c) an assertion of information establishing the court of appeal's jurisdiction on some other basis ....

When citing the law supporting your right to appeal, be as specific as possible. If it’s a suspensive appeal, cite La. Code Civ. P. art. 2123. If it’s a devolutive appeal, cite La. Code Civ. P. art. 2087. If it’s an appeal from a preliminary injunction, cite La. Code Civ. P. art. 3612. If it’s an appeal from a city or parish court, cite La. Code Civ. P. art. 5001 and 5002. If it’s an appeal from an interlocutory judgment that’s appealable “as expressly provided by law,” cite the specific statute or code article that makes the judgment appealable.

Also, any assertion of a jurisdictionally significant date should be supported by a record citation. For example, if the notice of judgment triggers the appeal delay, cite the record volume and page where the notice of judgment can be found. And of course, cite the record volume and page where the motion for appeal and order granting the appeal can be found.

Sometimes, a timely motion for new trial interrupts the appeal delay. If so, your jurisdictional statement should refer to the timely filing of the motion for new trial and the date of the notice of judgment denying new trial, with supporting record citations.

In short, the jurisdictional statement should include all the facts (supported by record citations) and all the law needed to establish the court of appeal’s appellate jurisdiction. 

That’s enough for one blog post. My next one will discuss the jurisdictional statement in an application for a supervisory writ.

For prior posts on this topic, see my posts of 12 July 2017 and 5 January 2013.


One space or two? Too much ado.

After my recent post about putting only one space (not two) between sentences, a friend pointed out a recent article in Attention, Perception & Psychophysics. According to the article, the authors (Rebecca L. Johnson, Becky Bui, and Lindsay L. Schmitt) did a study about this subject. Here’s the abstract:

The most recent edition of the American Psychological Association (APA) Manual states that two spaces should follow the punctuation at the end of a sentence. This is in contrast to the one-space requirement from previous editions. However, to date, there has been no empirical support for either convention. In the current study, participants performed (1) a typing task to assess spacing usage and (2) an eye-tracking experiment to assess the effect that punctuation spacing has on reading performance. Although comprehension was not affected by punctuation spacing, the eye movement record suggested that initial processing of the text was facilitated when periods were followed by two spaces, supporting the change made to the APA Manual. Individuals' typing usage also influenced these effects such that those who use two spaces following a period showed the greatest overall facilitation from reading with two spaces.

Unfortunately, to read the article itself, you have to shell out $39.95, which I wasn’t willing to do. (You can buy Matthew Butterick’s Typography for Lawyers for only $30.) Fortunately, I found this blog post in Lifehacker, where Nick Douglas did the homework.

Long story short: The font that Johnson et al. chose for their study was Courier New, a monospaced font that replicates a manual Underwood typewriter. The two-space convention is a vestige of the typewriter days, when everything was monospaced. This news just in: no one outside of prison writes a brief or any other court document on a manual typewriter using a monospaced font. For a few decades now, we’ve all had computers, and our documents have been written in proportionally spaced fonts. So as I said, “Unless you’re banging out your briefs on an Underwood manual typewriter, put only one space—not two—between the end of one sentence and the first letter of the next sentence.”

One more absolute rule for typography: No underlining. That will be the topic of a future post.


Only one space after sentences. Not two—not ever.

While on the subject of typography, here is an absolute rule, not subject to serious debate: Unless you’re banging out your briefs on an Underwood manual typewriter, put only one space—not two—between the end of one sentence and the first letter of the next sentence. On this point, the authorities are unanimous:

“Use even forward-spacing in your documents: one space between words and one space after punctuation marks (including colons and periods).” Bryan A. Garner, The Redbook § 4.12 (2013).

“Some topics in this book will offer you choices. Not this one. Always put exactly one space between sentences.” Matthew Butterick, Typography for Lawyers 41 (2010) (emphasis in original).

“A single character space, not two spaces, should be left after periods at the ends of sentences (both in manuscript and in final, published form) and after colons.” The Chicago Manual of Style § 2.12 (15th ed. 2003).

Space between sentences. In typeset matter, one space, not two (in other words, a regular space), follows any mark of punctuation that ends a sentence, whether a period, a colon, a question mark, an exclamation point, or closing quotation marks.” Id., § 6.11.


Why I left-justify rather than full-justify

Many brief-writers use fully justified text, so that the text lines up with both the left and right margins. I don’t. When I make the typography decisions, I use left-justified or left-aligned text, with a “ragged-right” margin. This is not a matter of personal preference. It’s a matter of readability. If the text is generated by a word processor (e.g. Word, WordPerfect) rather than professionally typeset, left-justified text is easier to read because it avoids odd gaps between words. But don’t take my word for it. Consider these authorities:

“Except in the hands of a skillful typographer, fully justified text can be harder to read than unjustified (‘flush-left’) text. This is always true for office documents, and especially when they are unhyphenated as well. Forcing the text to both margins may result in lines with word spacing that is too wide or, worse, unevenly distributed across the page.... Setting the copy flush left has its own advantages, too: the uneven right margin gives visual clues that help the reader find the beginning of the next line. Readers don’t lose their place in the copy as often.” Bryan A. Garner, The Redbook 92–93 (3d ed. 2013).

“In my law practice, I almost never justify text. Why’s that? The justification engine in a word processor is rudimentary compared to a professional page-layout program. I find that word-processor justification can make text look clunky and coarse. Left-aligning the text is more reliable.” Matthew Butterick, Typography for Lawyers 136 (2010).

“For desktop publishing, then, the choice should be different. According to some experts, keeping the text left-aligned affords the greatest legibility because there is no adjustment needed to word spacing and because the resulting ‘ragged-right’ margin adds variety and interest to the page without interfering with legibility.” Ruth Ann Robbins, Painting With Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents:, 2 J. ALWD 109, 130 (Fall 2004).

“Do not justify your text unless you hyphenate it too. If you fully justify unhyphenated text, rivers result as the word processing or page layout program adds white space between the words so that the margins line up.” U.S. Ct. App. 7th Cir. Requirements and Suggestions for Typography in Briefs and Other Papers.


Be a writer

Twice a year, I speak about appellate practice at a CLE seminar for newly sworn-in lawyers. One thing I continually warn them against is using someone else’s brief or writ application as a model. There are two reasons for this advice: (1) The model may not follow current court rules. (2) Following form like this tends to preserve bad legal writing. Today I can cite Mark Herrmann as a supporting authority for this advice. In a recent blog post at Above the Law, Mark tells this story from his early career:

It took a while for me to develop a sense of comfort when I started working at a small firm in San Francisco. I didn’t know how the quality of my written work compared to the quality of the written work of other new associates at the joint. (In fact, in my first week at the firm, I made the mistake of using a brief filed a few months earlier as a model for a brief that I was working on. When the partner told me my work was nothing special, I showed him the model I’d worked from. He explained an important lesson: Your obligation is never to recreate what we did last time; your obligation is to do the best you can do.)  


Bad things can happen ...

... when you cheat on the court’s typographic rules to circumvent the page limit. In this article for the Journal of the Missouri Bar, Professor Douglas Abrams catalogs cases where lawyers have gotten caught doing this and the penalties imposed on them. The lessons:

  1. Obey the court’s rules governing typography.
  2. If your brief or memorandum is too long, edit it to make it shorter.
  3. If, after editing, it’s still too long, file a motion for leave to exceed the court’s page limit. The motion may or may not be granted, but no one will think of you as a cheater for doing so.