We just wrapped a post on an appellate argument seemingly gone wrong. But as Gideon Kanner rightly pointed out oral argument most of the time is not dispositive.
On that note, we attended a wonderful CLE session at the recent ABA Midyear meeting, "Preparing an Effective Appellate Brief: The Judicial Advocate Perspective," put on by the Council of Appellate Lawyers. The panel, comprised of seasoned appellate lawyers (Timothy S. Bishop and Michael A. Scodro), and two judges (Hon. Catharina Haynes - 5th Circuit, and Hon. Barbara Jackson - N.C. Supreme Court), ably moderated by David H. Tennant, provided do's and don't's, pet peeves, and other tips on preparing the most important element in appellate advocacy.
We and others tweeted highlights of the event as it was happening, and rather than repeat those 140-character soundbytes in narrative form, we've decided to simply cut-and-paste them below. A bit jumpy to read, but you'll get the drift. Incorporate these tips into your appellate practice, and you can be assured of sinning no more. Any errors in reporting the panelists' remarks are entirely ours:
- On the panel for Preparing an Effective Appellate Brief - Timothy Bishop (Mayer Brown); Michael Scodro (Il. SG's office)...
- ..Catherina Haynes (5th Circuit); Barbara Jackson (NC S. Ct.). Moderator David Tennant (Nixon Peabody).
- Also in the room - Judge Randy Smith (9th Cir).
- Council of Appellate Lawyers is bench/bar org, with appellate lawyers and judges.
- Moderator: although program is designed for younger appellate lawyers, senior lawyers will find presentations interesting.
- "Preparing an Effective Appelate Brief" panel is pretty impressive: federal judge, state SCT justice, 2 pvt SCOTUS practitioners.
- Justice Jackson: in briefing, "brevity is the soul of wit."
- Judge Haynes: attorneys are experts, but judges are generalists. Attys job is to "bring me into" your area of law.
- Haynes: different for appeals judges v trial judges who typically get to know a case. App judges get to see case/issues once.
- Michael Scodro: "Patience" is key in briefing. A more mature brief is one that walks carefully through the analytical steps.
- Tim Bishop's advice: read lots of briefs. Practice your craft.
- Bishop: when I read a great brief, I think "wow," and I read it to see why I think that's so.
- Bishop-Learn to write better briefs by reading lots of briefs no matter how senior you are.
- Judge Haynes re mentors: do not try to be carbon copy, find a mentor and learn from them what fits your style.
- Haynes: look for people who are successful, and try to find out what makes them so. True in brief writing and other aspects.
- Pet peeves in briefing: what gets under your skin in briefs from younger lawyers?
- Bishop: young lawyers who work with me should read some of my briefs first. And should pay attention to my edits.
- Bishop: If I delete every "clearly" in a brief, don't give me a draft with the word "clearly" next time.
- Scodro's pet peeve: noticing the writing. It's not about the writing, but about the issues.
- Judge Haynes: attacking your opponent or the trial judge is not going to help you win.
- Young lawyers have tendency to show off in their writing. Readers shouldn't notice the writing-they should notice the points.
- Justice Jackson: read the rules (repeat). Your credibility counts:when you cite to a case, do so accurately.
- Bishop on best practices: everyone on team must be cognizant of budget, schedule. Young lawyers should know this.
- Bishop: I hate outlines [barista's note: me too]. They are a total waste of time and money. You work out so many problems in the acutal writing.
- Bishop: but you should have an "outline" in your mind so each member of brief team understands.
- Bishop- keep budget in mind when doing outline for brief. Many times they can be waste of time/money so be careful/mindful.
- Bishop: as you write, you find gaps that you need to research, so it's a process. Need to start writing so the process begins.
- Bishop: much more fun and much easier with big budget, but smaller cases need scaling of effort.
- Justice Jackson on framing issues: our court likes traditional Questions Presented, i.e., "Did the court err..."
- Jackson: we typically see somewhat complex issue statements, but we'd prefer simpler QP's. It would be "refreshing."
- Bishop: my view is that "deep issue" QP is the way to go, esp when seeking discretionary review.
- Bishop: most common practice at SCOTUS is keep QP on one page, have introductory paragraph briefly explaining case.
- Bishop: in lower appellate courts, the deep issue QP is not as common, but maybe it would be helpful to have some context in the QP.
- 5th Cir Judge Haynes: we don't necessarily read your brief in order. We would like some context, but no need to make it long.
- Haynes: you may not need to excite lower app courts with your issue, since we must take appeals.
- When you get to the main points in your brief- hit us in the gut with impact says judge.
- Question from the Moderator: if Rules of Appellate Procedure don't mention an Introduction section, can you still can use it? Answer: call the Clerk's office if any concerns.
- Scodoro: public and government attorneys don't use introductory statement often. But there is merit when seeking discretionary review.
- Haynes on "Statement of the Case" portion of brief: Fed R App P now mixes facts and procedural stuff. It should natually flow.
- Can you use Statement of Facts to be advocate? Haynes: Without going overboard, facts should help you.
- You should be done persuading the court by the time you finish your statement of facts. No need for flourishes- Judge Haynes.
- Bishop: must be accurate in Statement of Facts (cites, facts, proofread).
- It's an "epic fail" to slam the court in a brief. Watch the tone, says Justice Jackson.
- Bishop on Summary of Argument: keep it short, write it last.
- Bishop: use Summary of Argument section to tell the court the bottom line of your arguments.
- Bishop: summary of argument is trickiest part of brief. Many law clerks/judges don't read but some do. Keep it short/direct.
- Scodro re Reply Briefs: biggest error is "too much ink" to describe what opponent said. Sometimes, your description is better.
- Scodro: keep restatement of opponent's argument to minimum.
- Scodoro: biggest error in reply briefs - too much ink talking what the other side argued. Start sections with what you proved in own brief.
- J. Jackson: most compelling is authority you rely on. In courts of last resort, we find authority from courts of last resort the most valuable.
- Jackson: diminishes credibilty when brief doesnt cite on-point authority that is available. Scalia & Garner's book is very usefule on this issue.
- Justice Haynes - quoting Bryan Garner: never write a sentence that you couldn't actually speak (other than citations).
- Judge Haynes on ethics of briefwriting: duty of zeal does not forgive everything. There's also duty to court, duty of candor.
- Don't forget ethical obligations regarding brief writing. Duty to zealously represent client doesn't allow you to run amuck.
- Haynes: fall on your sword immediately when you have made a mistake in your brief. Do it quickly and with dignity before the court points it out. What do you do if you cite a case for a proposition it doesn't stand for? Write the court immediately and fall on your sword!
- How to format briefs for IPad readers and older judges. Something we would never have learned when I graduated.
- Justice Jackson has good practical advice for making briefs easier to read: hyperlinks, large font, tablet readable.
- Lists, bullet points, hyperlinks great for judges who read on iPads. Hyperlinks help credibility, says Judge Haynes.
- Judge Haynes: federal appeals judges travel a lot, and keep briefs, etc on tablets. Try and make it readable in those formats, not just on paper.
- Justice Jackson on footnotes: perfect use of footnote is reference to superceded statute.
- Judge Haynes: I disagree with the technique of putting all citations in footnotes.
- Justice Jackson: footnotes must be kept to minimum. Judge Haynes: string cites, defining termsm are good use of footnotes.
And that's it. It was, as you can see, a worthy 1.5 hours, and a good reminder for even seasoned appellate advocates. The materials handed out are posted here.
