Monday, November 29, 2021
A common refrain in our house is to "talk nice." My spouse and I try to remind our three year-old to not whine and to use nice words.
Using our "nice" and "kind" words is also important in appellate brief writing. One of the common themes that emerged from my work on Winning on Appeal is that judges don't like briefs that are "nasty." So, while you can criticize the reasoning of the lower court or the other party, you need to be "nice" in how you do it. In short, words and tone matter.
Consider this example (common in student briefs): "The lower court ignored the law when it x, y, z." By using "ignored," the brief writer connotes an intentional action by the lower court, rather than a mistake. And, while in the rare instance the action might have been intentional, appellate judges are smart and don't need the brief writer to point that part out. Appellate judges and trial judges are often friends. Many appellate judges started off as trial judges, and trial judges sometimes sit by designation on appellate courts (especially in the federal system). Judges attend conferences together and are generally friendly to each other. And, appellate judges know who on the trial court gets frequently reversed.
When I am grading student briefs and I see the "ignored" language, I always flag it for my students and suggest "nicer" language. This "nicer" language can even work in the relevant standard of review: "the lower court erred as a matter of law" or it "abused its discretion" in doing x, y, z.
The call to "talk nice" goes both ways. In the most recent issue of the Journal of Appellate Practice & Process, Judge Therese M. Stewart discusses how judges can better address controversial issues by being more mindful of the words that they use in their opinions. As she writes:
Judges can either disparage judicial colleagues with whom they disagree or focus on legal disagreement while expressing respect for colleagues who disagree and their point of view. The language we use in our opinions (and in public writing and speaking) can project partiality or worse, partisanship and ideology. Our words can, in the alternative, project openness, an ability to listen and a nonpartisan and impartial state of mind.
Simply put, persuasion by denigration does not turn the temperature down on matters that deeply divide us. Incivility in judicial writing does not advance thoughtful discourse among citizens who have strongly held, competing views. It encourages stridency in public discourse and mutual hostility between disputants.
The meat of Judge Stewart's article discusses the language used in the Supreme Court's LGBTQ cases, but she ends with concrete tips for judges who are writing opinions on controversial issues. Her advice includes:
- "Refrain from attacking judicial col-leagues. Don’t ascribe improper motives or agendas to other judges. . . ."
- "Don’t generalize or characterize per-sons or groups on either side."
- "Describe facts and parties from a sympathetic or neutral standpoint and fairly describe the arguments on both sides."
These tips, and others, can help brief writers "talk nice" too.