Saturday, July 15, 2023
One of my exciting (yes, really) summer projects is to help with a Legal Writing textbook, including drafting a chapter on trial briefs. In looking at state and local rules on what trial briefs should contain, I found a great list of ten brief-writing tips from the Hon. Terrence L. Michael, Chief U.S. Bankruptcy Judge for the U.S. Bankruptcy Court for the Northern District of Oklahoma and a member of the Bankruptcy Appellate Panel of the Tenth Circuit.
On his chamber’s webpage, https://www.oknb.uscourts.gov/content/honorable-terrence-l-michael, Judge Michael has a list of his “Policies and Procedures,” including a document called, Ten Tips for Effective Brief Writing (at Least With Respect to Briefs Submitted to Judge Michael), https://www.oknb.uscourts.gov/sites/oknb/files/briefwritingtips.pdf. Judge Michael is a respected and prolific author and speaker, and he’s even been on stage as a singer at Carnegie Hall, so I was not surprised to find his list of tips both engaging and fun. See generally https://www.law.com/clecenter/online-course-catalog/you-want-me-to-do-what-the-dilemma-of-trying-to-interpret-and-follow-appellate-precedent-6056/.
Of course, some of the judge’s tips are applicable to Bankruptcy Court and trial filings, but most apply well in appellate writing too. Therefore, I’m sharing all ten of his tips, although I’ve deleted points especially applicable to trial or bankruptcy practice.
Judge Michael begins:
I was once asked (OK, I once wished that I had been asked) what judges look for in written submissions. After considerable thought, and with some trepidation, I have tried to set some general principles down in writing.
He cautions: “What follows is a list of ten ideas/suggestions for your consideration. I do not purport to speak for any of my colleagues; this list, for better or worse, is my own.”
For this post, I’ll highlight Tips One through Five, and next time, I’ll discuss Tips Six to Ten.
Tip 1. Remember, Your Goal Is to Persuade, Not to Argue. Judge Michael explains, “[w]e all have had people come up to us at cocktail parties or family reunions and say, “’You know, I would make a good lawyer because I just love to argue.”’ He says, those statements “could not be further from the truth [as g]uests on the Jerry Springer show argue [while] Lawyers persuade.” Thus, the judge reminds us the idea “behind an effective brief is to have the audience (the judge and/or the law clerk) read the brief and say to themselves, ‘“why are these parties fighting over such an obvious issue?”’ because the points are actually persuasive, and not just argumentative.
Tip 2. Know thy Audience. Judge Michael notes that most bankruptcy judges write and publish opinions, and some even provide links of those opinions on their webpages. While appellate judges do not necessarily provide links to their opinions, we can certainly search for them. As the judge explains, “[w]e publish those opinions in order to give you some idea of what we have done and why [and w]e try to be consistent.” Therefore, judges find it “extremely frustrating (and remember, a frustrated judge is not easily persuaded) to have counsel in either written or oral argument raise an issue and be completely ignorant of the fact that we decided that issue in a published opinion last week, last month or last year.” Moreover, not knowing what your panel previously decided “is also embarrassing, both for you and for us.”
Tip 3. Know thy Circuit. Sadly, Judge Michael has to remind us his court is “bound by published decisions of the United States Court of Appeals for the Tenth Circuit,” even though he “ know[s] this sounds obvious,” because “on more than one occasion, [he] had an attorney ask [him] to follow a decision from another circuit which is directly contrary to controlling Tenth Circuit authority.” Avoid “creative” arguments to use sister circuit cases when your circuit really has decided the issue.
Tip 4. Know the Facts of the Cases You Cite. When teaching first-year students, I often caution them not to take quotes from cases either out of context or without context. Judge Michael’s Tip 4 says we must resist the temptation to insert what seem to be “magic words” of these unconnected quotes into our briefs. According to the judge, “insert[ing] that quotation ([he] call[s] them “sound bites”) into your brief and say[ing], “see, judge, other courts agree with me so I must be right” is actually “a dangerous practice.” Why? Because courts “decide real disputes” and “[r]eal disputes are fact driven.” Thus, we must “[b]e wary of the case which is factually dissimilar to yours, but has a great sound bite.” Instead, we should “be sure” to explain “why the factually dissimilar case is applicable to your situation.”
In another point I often raise with first-year students, the judge reminds us to “be cognizant of the difference between the holding of a case and the dicta contained therein,” as “[m]ost judges (this one included) find little value in dicta unless we already agree with it.”
Tip 5. Shorter Is Better. When I was in appellate practice, my clients often asked me to ghost write “record-protecting” trial briefs or include weaker issues on appeal to preserve them for high court review. Deciding which issues might prevail one day and which you should exclude because they are weak is a truly lawyerly task. In each case, you will balance the needs of the client—especially an institutional client—to raise issues against the persuasive value of focusing on just the best arguments. Judge Michael suggests we balance on the side of fewer arguments. He states: “Thurgood Marshall once said that in all his years on the Supreme Court, every case came down to a single issue. If that is true, why do most briefs contain arguments covering virtually every conceivable issue (good, bad or indifferent) which could arise in the case”?
The judge explains, “[w]eak arguments detract from the entire presentation.” He offers this great advice: “If you feel compelled in a particular case to include everything including the kitchen sink, maybe you ought to take another look at settling the case.” Good advice, indeed.