Friday, April 13, 2018
Appellate and supreme court judges are consumers of legal writing. They read hundreds--make that thousands--of briefs. A panel of judicial readers shared their thoughts at the Scribes National Legal Writing CLE Program at The John Marshall Law School in Chicago. The panelists were Justice Mary Jane Theis of the Illinois Supreme Court, Justice Kevin G. Ross of the Minnesota Court of Appeals, and Chief Justice Kem Thompson Frost of the Texas Fourteenth Court of Appeals. The panel moderator is Michele M. Jochner, a partner at Schiller, DuCanto & Fleck LLP.
Here are some thoughts from the Justices:
- A good issue statement--one that states the actual issues--is extremely helpful to judges. One judge will compare the issue statements from both the appellant's and appellee's briefs and use the version that most accurately states the issues in the case.
- Keep the issues readable and easy to comprehend.
- Keep the number of issues to a reasonable number. One appellate brief included 17 issues -- far too many for that case.
- Using humor in a brief can be effective, but when it's not effective it can break a case. Lawyers take a big risk by attempting to inject humor into a brief. It's rarely worth the risk.
- The statement of facts should be objective. Save the arguments for the argument.
- Be fair in the statement of facts because it will help you frame the best issues for the court.
- Subheadings help in a statement of facts, but save the argumentative headings for the argument.
- Prefer the active voice.
- Order the facts in a way that lays the groundwork for the analysis that will follow -- sometimes a chronological order is not always the best choice.
- If you include irrelevant facts or minutia in the statement of facts, judges will be distracted by trying to figure out why you included particular facts.
- Don't insert dates in the brief unless they're necessary. Most dates are not important. (Chronology is important, but specific dates often aren't necessary for the reader.)
- Don't ignore unfavorable facts. Judges won't be persuaded by an incomplete statement of facts.
- Stay within the record. The facts you cite must be found in the record.
- A reliable record is essential to establishing credibility with the court.
- Online briefs is not the future, it's the present. Although many judges read from paper, appellate court justices are now often reading online.
- Reading on screens requires more white space to be effective.
- Spellcheck doesn't catch everything, and many briefs describe what the "trail court" decided.
- Outlining helps you write a brief more effectively, particularly if you're writing the brief with others.
- The standard of review can determine the outcome of the case. Include that standard in the body of your argument and conclude with a statement of why the case does (or doesn't) meet that standard.
- Eliminate weak points in your argument (even if you became emotionally attached to them, they'll rob your brief of its chance for success).
- Many judges will rely on a good "Table of Contents," so effective headings are important.
- Use reader-friendly terms. If you have a long name for a particular document or thing, come up with a shorthand term ("the Jones Contract").
- Don't be afraid to reorder the arguments.
- Don't cite cases that you don't want the court to read.
- The lawyer who is least civil--the one who attacks the lawyer for the other side--usually has the weaker argument and will usually lose.
The panel is part of the Scribes National Legal Writing CLE Program at The John Marshall Law School. Click here for more information about Scribes--The American Society of Legal Writers.