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October 20, 2007

Great Kozinski Article on Writing Briefs and Oral Advocacy

Kozinski, Alex, The Wrong Stuff, 1992 B.Y.U. L. Rev. 325.  This article is 15 years old but is or should be mandatory reading in every law school writing or advocacy class.  It is actually a speech Judge Kozinski gave at BYU.  He subtitled it - How to Lose an Appeal.  As sarcastic as ever, Kozinski sets forth a great compendium of "don'ts" when writing and presenting your appeal. 

  • "First, you want to tell the judges right up front that you have a rotten case. The best way to do this is to write a fat brief.  So if the rules give you 50 pages, ask for 75, 90, 125--the more the better.  Even if you don't get the extra pages, you will let the judges know you don't have an
    argument capable of being presented in a simple, direct, persuasive fashion.  Keep in mind that simple arguments are winning arguments; convoluted arguments are sleeping pills on paper.
  • Bind your brief so that it falls apart when the judge gets about half way through it.  Also--this is a biggie-- make sure your photocopier is low on toner or scratch the glass so it will put annoying lines on every page. The judge won't even be able to decipher what you wrote, much less what you meant.
  • [W]inning arguments should not only be buried, they should also be written so as to be totally unintelligible.  Use convoluted sentences; leave out the verb, the subject, or both.  Avoid periods like the plague. Be generous with legal jargon and use plenty of Latin. And don't forget the acronyms in bureaucratese.
  • [P]ick a fight with opposing counsel.  Go ahead, call him a slime.  Accuse him of lying through his teeth. [In one particular case], I found myself cheering for the lawyers and forgot all about the legal issues.
  • You can always create a diversion by attacking the district judge.  You might start out by suggesting that he must be on the take because he ruled against you.  Or that he is senile or drunk with power, or just plain drunk.
  • Block quotes, by the way, are a must; they take up a lot of space but nobody reads them. Whenever I see a block quote I figure the lawyer had to go to the bathroom and forgot to turn off the merge/store function on his computer.
  • A good way to improve your chances of losing is to overclaim the strength of your case.  When it's your turn to speak, start off by explaining how miffed you are that this farce--this travesty of justice--has gone this far when it should have been clear to any dolt that your client's case is ironclad.  Now the reason this is a good tactic is that it challenges the judges to get you to admit that there is just some little teensy-weensy weakness in your case.
  • When you feel you've got them good and lathered, move into the next phase: stonewalling. What you want to avoid at all costs is giving a short, direct answer to the question.  Instead, tease the judge, equivocate, make him rephrase the question. The point is to get the judge really committed to the question so that the lack of a good answer will take on monstrous significance. A good way to start is by ridiculing the question: "I was afraid the court would get sidetracked down a blind alley by this red herring."
  • An alternative to stonewalling--and one of my personal favorites--is cutting off a judge's question.  Doing this gives you several important advantages.  First, it's rude, and if you're out to lose your case, there is really no substitute for offending the guy who's about to decide your case.  Beyond that, cutting off the judge mid-question sends an important message: Look here your honor, you think you're so clever, but I know exactly what is going on inside that pointed little head of yours. Then again, cutting the judge off gives you an opportunity to answer the wrong question.

One comment which kind of surprised me is that the judges know the law.  Its likely one of the three wrote the opinion on one of the important cases relating to the issue at hand.  Consentrate on the facts and be sure to know the record inside and out.      

October 20, 2007 in Article Reviews | Permalink


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