Saturday, March 9, 2019
The Federal Rules of Appellate Procedure, as well as the Rules adopted by several states, dictate a brief's minimum contents. But they don't set its order. And they're not exclusive criteria. The upshot? They give you the flexibility to present your argument in a way that best suits the issues in your appeal.
Over the past three or four years, I've read hundreds of briefs that slavishly tick boxes, running through the required background to get to the argument. I get it. The argument is, after all, the point of a brief. Even so, that approach wastes many words. Worse, it leaves the reader drowning in facts, grasping for context.
The problem shows itself most acutely in statutory interpretation cases. The court considers the facts in a specific context. Consider ERISA as an example. The judge needs to understand the players—often a mix of employee, employer, and ERISA plan—to decide the case. But launching into the "who" and "what" of a pension dispute isn't nearly as important as spending some time unpacking the "why." Why are the parties in court? Why should the court decide the case in your client's favor? And why is the case significant? That one is especially important if you're trying to get oral argument in some circuits.
One method unpacking why is starting your brief with a simple "statement" or "introduction." It's not required by Rule 28, but it's also not forbidden. A good statement should have a few simple paragraphs honing the court's interest on the nub of the legal problem it's got to decide.
Some are better done than others. Sticking with my ERISA theme, consider this "Preliminary Statement" from the Appellant's Opening Brief in a recently settled ERISA case from the Fourth Circuit, Longo v. Ascensus Trust Company, No. 16-2168 (4th Cir. Jan. 17, 2017):
Defendant-Appellant Ascensus Trust Company (“Ascensus Trust”) acted as a Directed Trustee for the Trojan Horse Ltd. 401(k) Plan (the “Plan”). Ascensus Trust was strictly limited by controlling plan documents, and its role was solely to manage contributions that it received from employers. In an unprecedented and results-driven decision, the District Court held that, notwithstanding its contractually proscribed responsibilities as a Directed Trustee, Ascensus Trust nevertheless breached a non-existent duty to proactively investigate whether the employers in fact made all Plan contributions, and to commence legal action to enforce payment.
This paragraph eventually finds its purpose: telling the reader that the district court erred when it concluded that Ascensus Trust, a directed trustee, owed Plan beneficiaries a fiduciary duty. (If you're uninitiated, a directed trustee is exactly what it sounds like. It's a trustee who acts at the direction of a fiduciary. 42 U.S.C. § 1103(a)(1)). Before going any further, I want to make one thing clear. This type of paragraph isn't bad; it's just not so good. It eventually arrives at the problem with the district court's ruling, but it spends too long airing grievances and using charged language ("unprecedented and results-driven decision," anyone?).
The paragraph could have been better. The issue in the case was: Do "directed trustees" owe fiduciary duties to plan beneficiaries? The statement would have been more powerful if it had previewed that issue and given enough some context, enough of its argument to teach the reader the law, the facts, and how those two things fit together in Ascensus Trust's favor. I imagine I would have drafted the statement more like this:
(1) Identify the issue;
(2) discuss the statutory definition of "directed trustee";
(3) discuss, using the other relevant statutes, why directed trustees don't owe fiduciary duties to plan beneficiaries; and
(4) give just enough background to show that Ascensus Trust was a directed trustee.
Simple, effective stuff.
I'm not just blowing smoke. Merits briefs filed in the Supreme Court follow the same pattern. Consider the Petitioner's Brief in Weyerhauser Co. v. U.S. Fish and Wildlife Services, the dusky gopher frog case. Weyerhauser was about a complex issue of statutory interpretation. And Petitioner's counsel didn't shy away from the statute:
Congress enacted the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (ESA or Act), to provide “a program for the conservation” of endangered species and to conserve “ecosystems upon which [they] depend.” Id. § 1531(b). To that end, Section 4 of the Act requires the Secretary of the Interior to identify endangered species and to “designate any habitat of such species which is then considered to be critical habitat.” Id. § 1533(a)(3)(A) (emphasis added). Section 3 defines “critical habitat” as certain areas “occupied by the species,” as well as other “areas outside the geographical area occupied by the species” that are determined to be “essential for the conservation of the species.” Id. § 1532(5)(A).
The Fish and Wildlife Service (FWS or Service) designated as critical habitat of the endangered dusky gopher frog 1544 acres of private land in Louisiana, which it labeled as Unit 1. Petitioner Weyerhaeuser operates that property by periodically harvesting and regrowing commercial loblolly pine (i.e., closed canopy) forests. FWS designated Unit 1 though no dusky gopher frog has been seen on that property for more than 50 years and the frog cannot live there absent a radical change in land use because the land lacks basic features necessary for the frog to survive.
In a little more than 200 words, the brief explains the entire case. Sure, there's a lot left to unpack. The brief is, after all, 56 pages long. But by tackling the legal issue head-on, rather than launch into the case background or poke holes in the lower court's decision, the Petitioner's brief orients the reader. It helps the audience understand why every fact, and every sentence, matters. Remember, it's not enough if you think every sentence advances your argument. Your reader also needs to know that. And preliminary statements help.