Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, September 9, 2021

Thursday's Rhaw Bar: The Objectives and Means of Brief Writing:  Who Makes the Rhetorical Choices?  Does it Matter?

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

This semester, I’m teaching Professional Responsibility to about 145 second-year law students.  We are on the topic of how the ethics rules allocate decision-making between lawyers and clients.   The allocation of decision-making is an ethical question addressed the American Bar Association’s Model Rules of Professional Conduct, which is a good approximation for the individual state ethics rules.  Model Rule 1.2 (a) and Comment 5 provide that

[A] lawyer shall abide by a client’s decisions concerning the objectives of representation, and . . . shall reasonably consult with the client about the means by which [the objectives] are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. . . . Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters.

Objectives, Means & The Appellate Brief

Applying this rule to appellate lawyers writing briefs seems straightforward.  When a client decides to appeal a trial court decision, the objective is simple; reverse or somehow otherwise turn the trial court’s decision to the appellant’s favor.  An appellee has the opposite objective—convince the appellate court to affirm what the trial court did. (Of course, I’m oversimplifying a bit here—there could be other objectives like, for example, filing an appeal to encourage the other side to settle.  But generally, the client’s objective is to win on appeal.)  Once the objective of winning on appeal has been set, appellate lawyers, after consulting with the client, decide upon the means to accomplish those objectives. In the context of the appeal, those means almost certainly include crafting winning arguments in the appellate briefs.   In that case, it would seem that the lawyer’s rhetorical choices, that is, the strategies and tactics of persuasion the lawyer chooses in writing an appellate brief, are the means of accomplishing the client’s objective.  If that’s the case, then the ethics rule above suggests that the client should defer to the lawyer on those choices.

So, we might conclude that content of the brief is almost always the means and not the objective of representation.  In other words, it is the appellate lawyer’s task to decide on the strategies and tactics of producing persuasive arguments, of engaging in rhetoric as a productive art.  (I wrote about this concept of rhetoric as productive art last month.)  If rhetoric is a productive art, then one would think that all of the rhetorical choices in a brief, including what issues and arguments to raise and how to raise them are within the lawyer’s purview to decide.  Maybe consultation is required under the ethical rule, but nothing more.  (In fact, in states with ethics codes like Florida, the comments to the rule suggest the lawyer is to “accept responsibility” for the means, which is slightly more clear than the ABA’s Model Rules on the role of the lawyer regarding the means.)

But is it really such an easy call, to say that it is ethical for the lawyer to make decisions about the choices about what is persuasive in a a brief?  Maybe, maybe not.   Perhaps surprisingly, the United States Supreme Court has something to say about this question in the context of the Sixth Amendment right to effective assistance of counsel in criminal cases on appeal.  Even if one is a civil appellate lawyer without the constitutional obligations of the criminal appellate lawyer, the case is nevertheless a fascinating case to know something about, because the opinion helps us ask questions and think more deeply about the rhetorical choices lawyers make when they write appellate briefs.

Raising Issues on Appeal:  The Supreme Court’s View in Jones v. Barnes

In 1976, a New York state jury convicted David Barnes of robbery and assault.  Michael Melinger was assigned to represent Barnes on appeal.  From prison, Barnes contacted Melinger, sending him a letter identifying the issues that Barnes thought should be raised on appeal.  Barnes also enclosed his own pro se brief.

Melinger responded to Barnes rejecting most of his suggested issues and inviting Barnes to consider and respond to the seven issues Melinger concluded could be viable on appeal. Barnes never responded.

In the end, Melinger’s appellate brief (and his oral argument) included three of the seven issues he originally identified and none of Barnes’s.  But Melinger also filed with the appeals court Barnes’s pro se brief.  Melinger lost the appeal.

In later proceedings seeking relief from his conviction, Barnes alleged that because Melinger refused to raise the issues that Barnes wanted raised on appeal, Melinger had provided ineffective assistance of counsel under the U.S. Constitution’s Sixth Amendment guarantee of a defendant’s right to counsel.

This issue eventually made its way to the United States Supreme Court, and in 1983, the Supreme Court held that Melinger did not violate the Sixth Amendment when he refused to raise the issues Barnes had wanted. Ultimately, the Court, said, an indigent defendant had no constitutional right to “compel counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to press those points.”

The appellate advocate’s “superior skill” and “professional judgment” in selecting the most persuasive issues on appeal occupied most of the Court’s reasoning in the majority opinion.  Citing commentators on appellate advocacy, the court celebrated the skill of the “discriminating advocate” to “winnow[] out weaker arguments on appeal and focus on  . . . at most a few key issues.”  A good appellate advocate knows, the Court implied, which issues are most “promising” for appeal,  and the lawyer should be the one to choose which of the “few major points” should be raised.  The discerning appellate advocate knows that raising too many issues in a brief “dilutes the force of the stronger ones.” Ultimately the Court said, “A brief that raises every colorable issue runs the risk of burying good arguments—those that  . . . ‘go for the jugular,” . . .—in a verbal mound made up of strong and weak contentions.”

In a footnote, the majority implied that not only would a lawyer act constitutionally in selecting the issues on appeal, they would act ethically as well. The footnote pointed to the ethical duty of the lawyer for the means under the recently adopted Model Rules of Professional Conduct Rule 1.2(a) and noted that the rule expects the lawyer to “take professional responsibility for the conduct of the case, after consulting with the client.” 

In his concurrence, Justice Blackmun agreed with the majority that Melinger did not violate the Constitution regarding the “ideal allocation of decision-making authority between lawyer and client.”  But, Blackman said, as a matter of ethics, he thought an appellate attorney should advise the client on the issues “most likely to succeed,” and, in the end, “should argue on appeal all nonfrivolous claims upon which his client insists.”

Dissenting, Justice Brennan concluded that Melinger’s apparent refusal to raise Barnes’s issues on appeal violated the Sixth Amendment.  At least in the context of an indigent defendant with court-appointed counsel, the autonomy and dignity of that defendant is the dominant concern, Brennan said. Accordingly,  the defeindant retained the right to make the decision about which nonfrivolous issues to raise on appeal, even if that went against the advice of counsel. Even though Brennan agreed with the majority that “good appellate advocacy demands selectivity among arguments,” and that advice “should be taken to heart by every lawyer called upon to argue and appeal,” he found that indigent defendant did not have to follow that advice.  Brennan noted that the ABA’s Criminal Justice Standards (still in effect today) stated that, as an ethical matter, the decision about what “contentions” to “press” on appeal was to be decided by the client.

Brennan was further skeptical of the majority’s view of the importance of the lawyer’s rhetorical choices at the appellate stage. He thought that judges could effectively recognize meritorious arguments, even if the lawyer did not do such a great job in separating the wheat from the chaff.  Brennan said:  “[E]ven if [arguments are] made less elegantly or in fewer pages than the lawyer would have liked, and even if less meritorious arguments accompany it, [a judge can recognize a good argument.]  If the quality of justice in this country is really dependent on nice gradations in lawyers’ rhetorical skills, we could no longer call it ‘justice.’” In only a handful of cases, “especially at the appellate level,” Brennan observed, would “truly skillful advocacy” make a difference in vindicating good claims and rejecting bad ones.

Some Thoughts About Decision-Making, Ethics, and Rhetorical Choices in Appellate Briefs

So, what then, do we have here? 

Ethically, the Model Rules establish lawyers are responsible, after consultation with the client, for the means of the case and, clients, the objectives.  The majority of the Supreme Court holds in Jones that it is constitutional for a lawyer to decide which issues to raise in a criminal appeal and suggests in dicta that selecting issues on appeal is, for ethics purposes, a mean for which the lawyer is responsible.  Conversely, both the concurrence and dissent suggest that the decision about which issues to raise on appeal are so important for a criminal defendant that, ethically (in Blackmun’s dicta) and constitutionally and ethically (in Brennan’s opinion), the choice is an objective for the client to decide.

The implications for Jones v. Barnes are clear for the appellate lawyer representing indigent criminal defendants:  constitutionally, if the lawyer wants to take over the decision-making about what to raise on appeal, the lawyer can do so.  (While the Supreme Court suggests it is also ethical, that is dicta, and the ABA’s Criminal Justice Standards suggest a different result.  The ethics, then, are perhaps not so clear.) For civil appellate lawyers,  on the other hand, the implications of Jones are indirect but interesting.  The opinion is worth contemplating because it gets us thinking about the ethics and professionalism of rhetorical choices in briefs and whether rhetorical choices in briefs have any meaning at all.

            Is brief writing a mean or an objective?

On its face, one might not immediately think about the ethics of decision-making allocation when deciding how and what to write in an appellate brief.  It might seem counterintuitive that the choice about whether to raise a particular issue would be anything other than a mean for accomplishing the client’s objectives.  Accordingly, most lawyers, while consulting with their clients about the brief and perhaps even taking suggestions on a brief’s contents, would consider themselves to be ultimately responsible for making choices about how the brief will persuade. 

But Jones might make the appellate lawyer pause and consider whether there are situations in the civil context where the issues raised on appeal are objectives rather than means.  One might imagine that experienced appellate lawyers can readily share stories where they found themselves in that situation.  In some contexts, perhaps, the client’s desire to have their voice be heard in a particular way or to “have their day in court” becomes a driving force behind the content of the brief, even if the lawyer doesn’t necessarily think that every issue or argument raised in the brief is legally important.  Instead, those issues and arguments might be seen to have a different rhetorical importance—to create in the client feelings of meaningfulness, to feel heard, to feel seen.  Maybe Brennan’s argument for client autonomy and dignity in Jones, even if only analogically and in principle, should extend to all appellate litigants.

            Are legal issues created or identified?

Another question Jones raises is the nature of “issue identification” as a rhetorical  (i.e., persuasive) act.  That is, do lawyers create issues for argument or do they find them?  In other words, if issues raised on appeal are the product of a lawyer’s rhetorical imagination—the product of the lawyer’s ability to invent argument—then the case for issues identification as a mean rather than an objective of the representation is stronger.  But, if the legal issues exist outside of the lawyer’s imagination, only to be identified rather than created, then maybe there’s less of convincing argument that choosing issues on appeal is a means instead of an objective.

But, on the other hand, even issue identification is a rhetorical act.  Aristotle, for example, suggested that logical arguments are informed by artistic and inartistic proofs.  Artistic proofs, Aristotle said, are created by the rhetor.  An inartistic proof exists in sources outside the rhetor, such as in documents, facts, and other data.  So, even if the issues to be raised on appeal are inartistic and not a product of the lawyer’s inventive capacities, there are still rhetorical choices a lawyer makes in finding and selecting those issues. (I tend to think that legal issues are created rather than found, but that depends on one’s view of the rhetorical situation. This classic debate between rhetoric scholars Lloyd Bitzer and Richard Vatz gets at that issue.)

            Which rhetorical choices are means? Which ones are objectives?

Another question that Jones evokes is, if one agrees with Brennan’s view that some rhetorical choices are objectives rather than means, then which ones are which?   For example, an appellate brief should have a theme.  If, as Brennan suggests, the choice of issues can be an objective, is the theme an objective or a mean?  How about metaphors?  How about references to history or popular culture that help make a point?  All of these choices give an appellate brief its character. Does that character belong, ultimately and ethically, to the lawyer or the client?  Whose rhetoric—the lawyer’s or the client’s—should a brief reflect? And then, what should the appellate lawyer do about it?

            Does the appellate lawyer’s professional expertise in legal rhetoric matter?

And finally, what might appellate lawyers make of Justice Brennan’s suggestion that except for a small handful of cases, the lawyer’s rhetorical choices in a brief—good or bad—are not so important?  Brennan’s argument is just the opposite of the majority’s, which places great value on the professional expertise of the appellate lawyer.  Brennan, instead, minimizes the value of the appellate lawyer’s contribution to justice, suggesting instead that, in most cases, judges can figure out the right result regardless of the effectiveness of the brief writing.  If that is the case, what is the value the appellate lawyer adds in anything but a handful of cases?  If the rhetorical, i.e., persuasive, writing of the appellate lawyer does not matter so much, then what does matter?  And, if persuasive writing doesn’t really matter, then maybe in appellate brief writing, it doesn’t really matter if rhetorical choices are objectives or means.

Ultimately, I think that the lawyer’s rhetorical skill is most often a means to accomplish the client’s objectives that is influential and meaningful in the judicial process. That skill guides the decision maker, invents effective argument, brings perspective, and, perhaps, most importantly, shapes the law.  Brennan acknowledged in his dissent that lawyers do, in some cases, help “shape the law.” This impact is even more obvious where judges, in written opinions, overtly respond to the arguments that the lawyers have raised.  And an appellate lawyer’s writing, if not legally, then materially, gives the client voice in a system that may seem to be impenetrable, incomprehensible, and unfair.  This makes the appellate lawyer’s rhetorical skill critical, particularly for clients who are not able to effectively do that for themselves regardless of whether a judge can find the just result all on their own.

That being said, Jones v. Barnes reminds that even if rhetorical choices in brief writing are most likely a means to accomplish the client’s objectives and that civil appellate lawyers are most often the last line of decision-making in which issues to raise on appeal, clients of all stripes deserve an opportunity to influence and their own voice to those choices.  In fact, that kind of consultation can make briefs even more rhetorically effective because clients can invent arguments, too.

What have I missed in my analysis here? What do you think the ethics and rhetoric of raising issues in briefs? Your thoughts are welcome in the comments below.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

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