Thursday, March 14, 2013
Texas Lawyer has some advice on when to employ, or not to employ, creative briefing strategies, like illustrations, poems, and other unconventional tactics. Using photographs, drawings, and dialogues in briefs has become more common as lawyers attempt to breakthrough with an overburdened appellate bench. From the article:
First and foremost, make sure it really works. The poem, play or drawing may seem brilliant when first written, but do others agree? Vetting themes or even whole drafts with colleagues or spouses is a great idea for any brief, but it is essential when dispensing with the standard form. It's probably best to return to the tried and true if more than one reader responds with a puzzled look or asks, "Are you really sure that's a smart idea?"
Second, carefully consider the specific nature of the task at hand. Desperate times call for desperate measures, and desperate legal challenges are better candidates for novelty than run-of-the-mill matters.
Third, flouting custom works best when simplicity can do the job. Opening appellate briefs require questions presented, statements of fact, summaries of argument and so on. There is no way to condense one into a single photo or cartoon, and such devices will inevitably grate on the court if a lawyer takes them too far. On the other hand, a short brief that will make one or two simple points may be more susceptible to innovation.
Fourth, no lawyer should wander off the reservation without the client's wholehearted endorsement. Counsel should explain beforehand why an out-of-the-box approach can work in this case and make sure the client fully understands and agrees. If things go south, charm and novelty may look strange and ill-conceived.