Monday, April 23, 2018
For the past few weeks I have been blogging about appellate brief-writing tips from appellate judges, based on my work on the third edition of Winning on Appeal. You can read the first two posts here and here.
The tip for this week is to be professional in your writing. There is much that could be said on the topic of professionalism in brief-writing. I am going to focus on two points--accuracy and civility.
As I discussed in week 1, the most common complaint that judges have about briefs is that they are too long. One of the other most common complaints that we heard from judges was about accuracy. They bemoaned lawyers misstating the law and the record, and mentioned how such tactics destroyed a brief-writer's credibility with the court. Look at this quote from an appellate judge: “To me, the worst thing that a lawyer can do in a brief is to cite cases for proposition that they simply do not support or to falsely state the record. When I see that, I conclude that I cannot rely on anything in the brief.”
Lack of accuracy can raise ethical issues. The ABA Model Rules of Professional Conduct state that a "lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer." Sadly, many misstatements are the result of laziness--failure to fully read cases and failure to fully master the record. Don't be the lawyer who falls into this trap--take time to adequately prepare your briefs, and be scrupulous about the record!
The other professionalism issue is civility. Sadly, many lawyers hurt their credibility by attacking opposing counsel or the judge below in their briefs (and oral arguments). With respect to attacking the judge below, this never made any sense to me. In the federal system (and, from what I have seen, in many state systems), there is a decent amount of interaction between the different levels of judges. They are all fairly civil to each other, and most of the judges on the higher courts started off on the trial or intermediate appellate bench. Starting off your brief by personally attacking the judge below, who is likely a friend of at least of few of the appellate judges deciding your case, seems like really poor strategy.
As one appellate judge put it, "[e]ngaging in personal attacks on parties, lawyers, or judges is unacceptable." You can point out flaws in an argument or opinion with stooping to the level of personal attacks. It will make your brief stronger and more persuasive.