Sunday, September 12, 2021
“Interrogate the cases.” With that interesting turn of phrase, Michael Dreeben, a veteran of the U.S. Solicitor General’s Office, told an online audience last week that appellate advocates need to do more than read and study the cases that form the basis of each sides’ arguments. The half-day session, sponsored by the Fourth Circuit, contained a number of nuggets from judges and practitioners useful to any appellate practice.
Of course, there is no single way to argue a case, and two advocates can take very different approaches yet still achieve equal success. But when experienced voices from the bench and bar dispense advice, paying attention becomes the order of the day -- even if that advice does not work for you or, in your opinion, would not work for most people.
When Dreeben advised that appellate counsel “interrogate the cases,” he explained that it was important to examine more than a case’s facial holdings and reasoning. Interrogation meant that it was important to scrutinize the foundations of the decision’s results, its take on cited precedents, and its treatment in different contexts by other courts. Every appellate lawyer knows how to rely on a straightforward application of a decision’s essential holding or how to distinguish an opinion that has problematic application to the position you are taking. However, the suggestion to “interrogate” requires an advocate to go deeper and expose the either stronger basis for the rule announced by a case, or the weaker underpinning for it, perhaps based on a skewed interpretation of existing precedential building blocks.
Another useful perspective that Dreeben advocated lawyers adopt was to compose your argument while bearing in mind what does an intelligent jurist want to know to get the answer right? His experience taught him that most judges want to find the right answer. Consider what, whether based on the factual record or the posture of the law, will provide the tools that will help the judge rule your way. While anticipating what the inquiring mind of a generic judge might need to rule in your favor, it also helps to know your court and the judges who serve on it. Doing so will guide you about a judge’s willingness to consider legislative history or other tools that you might employ.
Looking at a case from every angle is a common refrain in appellate advocacy seminars, though the advice often has little content. Underscoring what it really means, Judge Paul Niemeyer called knowing how you can lose the case is “one of the most important aspects of preparation.” It forces you to consider the weaknesses in your argument and address them – or, explain why the problem you face does not doom your case.
Another experienced appellate practitioner, Kannon Shanmugam, provided some practical tips on modern brief-writing. He explained that, today, most judges read briefs on-screen, rather than plow through paper copies. To prevent points from being lost, he uses fewer footnotes than he once did to avoid forcing the judge to scroll up and down the page. Briefs should help the court reach a result. Shanmugam said that he considered a brief that runs 12,999 words, when the limit is 13000, a “tell” that the advocate has not helped the court by limiting the brief to its most essential focus.
Judge Niemeyer echoed a similar sentiment, calling for shorter, more focused briefs. He said he finds shorter briefs more powerful than the ponderous ones that are too frequently filed. He also warned against overuse of string citations: “Don’t just list cases. Argue.”
Finally, Judge Stephanie Thacker offered one other practical point that may often be overlooked. “My favorite part of a brief,” she said, “is the summary of argument.” She urged counsel not to give it short shrift or treat it as an afterthought. Instead, it should provide the reader with a clear and concise explanation of the facts and law. It helps the judge understand the entire argument and provides a basis for narrowing the issues the judge might believe critical to the ultimate resolution of the case.
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In a posting last month, I discussed arguments made in three briefs filed in short order, each of which sought the reversal of a precedents. One of those cases was Oklahoma v. Bosse, where the State of Oklahoma filed a petition for certiorari that asked the Court to reconsider its year-old decision in McGirt v. Oklahoma, because of the dire consequences the state had experienced since the decision. Less than a month after filing its petition, Oklahoma dismissed it, reserving for another day and another case its argument on why McGirt should be overturned.
 No. 21-186, Pet. for Certiorari (S.Ct. Aug. 6, 2021).
 140 S. Ct. 2452 (2020).