Legal Writing (Rerun)

June 26, 2009

Fayetteville, AR

Drafting a WinningAppellate Brief

Presenter: Gerry Schulze

Baker & Schulze

Selecting Issues

Identifying the Issues that Win on Appeal– Select your Best Two or Three– What is the Court Likely to Consider– Strength of Record Below– Prejudicial Error– Has the Court indicated interest in the

issue?• The “Caveat”

Quotes

“If I’d had more time, my brief would have been shorter.”– Source unknown, but not original with me.

“There’s no such thing as a ‘final’ draft, there’s only the last draft done before the brief is due.”– Gerry Schulze

• At least I think it’s original with me. I may have heard it somewhere else, but I can’t trace it.

Limiting the Number of Arguments

Avoid the “Kitchen Sink” approach. Some recommend three points as the

maximum. Others will let you get away with four. The problem is, sometimes you don’t

have the judgment to know what argument will work.

Judge Arey

Appellate advocates must next exercise discretion and objective detachment in deciding which of these issues will be raised on appeal. One consistent admonition decries the “kitchen sink” approach of raising every conceivable issue on appeal. “A storm of arguments--good, bad, and indifferent--can convince the judges that there is no merit to the case, even if buried in the deluge is a winning nugget.” A competent appellate advocate will evaluate the issues accordingly, “select[ing] with dispassionate and detached mind the issues that common sense and experience tell him are likely to be dispositive. He must reject other issues or give them short treatment.” – Arey, D. Franklin, Competent Appellate Advocacy and Continuing

Legal Education, Fitting the Means to the End, 2 J.App.Prac. & Process 27 (2000)

Standard of Review

Rules require you to lead off with this. After that, don’t feel free to ignore it.

A Concise Brief: Page Limits and Other Considerations

Arkansas: Pages Federal: Words Usually, this should be no problem. In very complicated cases, it can be a

problem.

Secrets to a successful argument: Persuading without Exaggeration

Lawyers write for different purposes, and it is essential to remember the appropriate kind of writing for each segment of the brief.

Kinds of Legal Writing

Informative Persuasive “Functional”

Informative

Letters to client– Not necessarily “simple” but not “legalese”– Explain terms

Interoffice memoranda Opinion letter

– understandable.– disclaimers

“Informative” parts of the brief

Jurisdictional Statement Statement of the Case Statement of Facts

Persuasive

Settlement Brochures Argument portion of Briefs

– Vary in complexity– Probably the most time consuming of all

documents– Different concerns with

• Trial Courts• Appellate Courts• Administrative Agencies

Functional

This kind of document is one which is supposed to create a result– Will– Deed– Complaint– Trust– Power of Attorney– Contract– Real Estate Documents

Functional part of briefs

Cover Page Table of Contents Table of Authorities

“Legalese”

Some say, “never use legalese” I say, use it advisedly. Legalese is particularly useful in

“functional” writing where it has an accepted meaning

Even Latin is appropriate in some occasions

Characteristics of Legal Writing

Clarity– Word choice– Organization– Avoid Legalese where possible

• In functional writing, legalese is often preferable• In persuasive writing you can get by with it

when you have to• In “informative” writing it will seldom do much

good

Characteristics of Legal Writing

Conciseness– Strunk’s advice, “Make each word tell.”– Sometimes you have to balance the need

for completeness and the need for concise writing

– Avoid repetition– As to page limits, remember, this is not

high school. The Court does not expect you to fill up your page limits.

Pleadings

Pleadings are generally functional rather than persuasive.

It is more important to comply with the form and to say all the right “magic words” than to make your language concise or enjoyable.

Pleadings are to be interpreted to do substantial justice.

Characteristics of LegalWriting

Accuracy– Accuracy of Facts

• Check your sources• Facts are often not what you know, but what

you can prove• Frequent references to testimony, affidavits,

depositions, exhibits, and other evidence can help you maintain credibility as well as help you keep accurate on the facts

Characteristics of Legal Writing

Accuracy of Authority– Double check cites– Shepardize or Keycite

Characteristics of Legal Writing

Proper form– Pay attention to Court Rules

• Paper sizes and margins• Captions• Type size and font• Spacing

– Pay attention to the Bluebook and other sources

• Citation forms

References for Legal Writing

The Bluebook. 16th Edition Court Rules Arkansas Supreme Court Stylebook

– On its website. Grammar

– Strunk & White– Gregg’s Reference Manual. 9th Edition

References in the Office

Make your own booklet of information you need

Arkansas Bar Association Systems Pick out books you like and keep them

handy– Gregg’s– Strunk & White– Elements of Legal Style

Grammar

“I am about to — or I am going to — die, either expression is used.“– Grammarian Dominique Bonhours, on his

deathbed.

Analyze the normal by using the bizarre

We don’t notice the “normal.” Sometimes the only way to look at the

“normal” is to compare it to aberrations. Examples of language usage in the

booklet.

Grammar

Systematic study and description of a language or dialect– Standard American English is a dialect

• Legalese is a subdialect of Standard American English

– In English, the standard for grammar is set by general acceptance in the community

• Compare French and Spanish, for example, in which proper usage is determined by Academies.

Grammar: Prescriptive and Descriptive "Descriptive grammar" is the study and

description of a language as it is actually used.

"Prescriptive grammar" is the study and description of a language as it "should" be used.

Grammar

– "Should" implies that there is a right way and a wrong way to use language. To the scientific student of language, there is no form which is inherently right, and no form which is inherently wrong.

– Right usage is simply usage which is accepted by the language community as right.

Style

Style is more than grammatical correctness.

Develop your own style. It comes with practice.

Making Your Case: The Art of Persuading Judges, Antonin Scalia and Bryan Garner Recent (4/28/08) Very good book. Sections 39-54 deal

with style. Even the authors do

not agree on everything.

Scalia and Garner

39. Value clarity above all other elements of style

40. Use captioned section headings. 41. Use paragraphs intelligently;

signpost your arguments 42. To clarify abstract concepts, give

examples

Scalia and Garner

43. Make it interesting. 44. Banish jargon, hackneyed

expressions, and needless Latin. 45. Consider using contractions

occasionally—or not. 46. Avoid acronyms. Use the parties’

names.

Scalia and Garner

47. Don’t overuse italics; don’t use bold type except in headings; don’t use underlining at all.

48. Describe and cite authorities with scrupulous accuracy.

49. Cite authorities sparingly. 50. Quote authorities more sparingly

still.

Scalia and Garner

51. Swear off substantive footnotes—or not.

52. Consider putting citations in footnotes—or not.

53. Make the relevant text readily available to the court.

54. Don’t spoil your product with poor typography.

Quick review of confusing points of grammar—in case anyone is interested Who and whom. The subjunctive. Non-rules. Myths.

Who and Whom

• “Who” is a subject• It is like “I,” “he,” “she,” or “they.”

• “Whom” is an object• It is like “me,” “him,” “she,” or “them.”

• When who/whom is found in a clause, the correct form depends on the function the word plays in that clause

Who and Whom

Give the prize to whoever wins. Give the prize to whomever the

judges choose.

The Subjunctive

People tend to think of the subjunctive as an obscure, incomprehensible verb form in English

It is somewhat difficult because most of the time there’s no difference between indicative and subjunctive forms.

The Subjunctive

With the verb “to be” in the present tense, the form is not “am,” “is,” or “are” but “be.”– “...that I be”; “… that you be.”

With other present tense verbs, the only difference is in the third person singular, where the characteristic “-s” is missing.– ..that he walk.”

The Subjunctive

In the past, the verb “to be” is always “were”– “. . . that I were”; “ . . . that he were.”

In the future, “will” becomes “would”

Otherwise, the form is identical to the indicative.

The Subjunctive

What’s it for?– Expression of necessity, demand, strong

request.• It is necessary that these questions be

answered at once.• I demand that I be allowed to attend the

meeting.

The Subjunctive

What’s it for?– “Wish” clauses

• I wish I were going to the meeting

– Counterfactual statements• “If” statements followed by a statement that the

speaker suggests is not true.• Particularly useful in all kinds of arguments

Non-Rules/Myths

Do not end a sentence with a preposition

Never split an infinitive Never begin a sentence with:

– And, but, or or– Because or however

Never write a one sentence paragraph

Preposition

“This is the sort of arrant pedantry up with which I will not put.”– Winston Churchill

“The preposition often seems to stand at the end of the sentence or clause: 'I have lost the pen I write with.' “– George Curme, Syntax, 566 (1931)

• Curme was a noted grammarian of the Germanic languages. English is a Germanic language.

Split Infinitive

“To boldly go where no man has gone before.”– Of course, that is incorrect.– It should be, where no one has gone before.

From: Garner on Language and Writing

Split Infinitive

Hardly any serious commentator believes that infinitives should never be split. The dispute is between those who believe that split infinitives should be avoided when this can be done with no sacrifice of clarity or naturalness, and those who believe that no effort whatever should be made to avoid them. – Alt.Usage.English Frequently Asked Questions

entry on the split infinitive.

And/But/Or at Beginning of Sentence

Bryan Garner challenged this myth beautifully in Garner on Language and Writing. He goes back to Chaucer and works forward, showing that good writers have always ignored this myth.

Word Usage

Less/Fewer Conclusory Enormity Therefore/Therefor

Problem with Non-rules

Too many readers think they are actually rules.

June Casagrande. Mortal Syntax 101: 101 Language Choices That Will Get You Clobbered by the Grammar Snobs--Even If You're Right

Conclusory Conclusory Greenwood v.

Wierdsma, 741 P.2d 1079, 1086, n3 (Wyo. 1987)

After painstaking deliberation, we have decided that we like the word "conclusory," and we are distressed by its omission from the English language. We now proclaim that henceforth "conclusory" is appropriately used in the opinions of this court. Furthermore, its usage is welcomed in briefs submitted for this court's review. Webster's, take heed!

Style

Emphasis belongs at the beginning. Use short, simple sentences. Use active verbs. Do not overstate. Do not offend. “Make each word tell.” Avoid equivocal language.

Pleadings

Pleadings are generally functional rather than persuasive.

It is more important to comply with the form and to say all the right “magic words” than to make your language concise or enjoyable.

Pleadings are to be interpreted to do substantial justice.

Fact Pleading

Arkansas is a “fact pleading” state.– You must plead “facts” sufficient to state a

cause of action– Merely stating conclusions is not enough

The Federal System is “Notice Pleading”– This used to mean that a very skeletal

complaint was adequate.

Notice Pleading

The federal rules allow fairly vague statements of facts, but . . .

Recent changes in the discovery rules have made it advantageous to plead facts so that the initial disclosures will be more complete.

Matters which you must plead

Facts for jurisdiction– It’s usually not that important in state court, but

sometimes—especially in courts of limited jurisdiction—may be essential. It never hurts.)

Facts for venue Identity of parties Facts giving rise to the dispute Notice In some cases, such as contract cases, exhibits

must be attached and properly identified

Necessary legalese

Sometimes it is necessary to use formulas to properly allege a fact

“Upon information and belief . . . . “

Unnecessary legalese “and/or”

It is obvious this problem has arisen because the interrogatory employed an imprecise term, “and/or,” when precision was called for. The phrase has been so soundly criticized as to have been driven almost entirely from current usage. At best it has been labeled “equivocal,” “obscure” and “meaningless,” at worst “slovenly,” “improper” and “a linguistic abomination.” It has no place in modern practice, least of all in discovery interrogatories. Boren v.Qualls, 284 Ark. 65 (1984) [citations omitted].

Briefs

You have to be careful to get these right, because there is an opposing counsel just looking for any misstatement of fact, citation error, typographical error, unclear language, or any other fault that can be exploited

Citations

Citations are the way you tell the Court the authority for the legal arguments you are making.

Follow the Bluebook Double check the citations “Shepardize” or electronically check

each citation.

Be Respectful and Professional

Finally, I am compelled to mention that the appellee’s intemperate response to the appellant’s rehearing petition was not only inappropriate but was vile and slanderous. He argues, among other things, that the majority was correct to allow the trial court to make a custody decision based on his perception of the appellant’s religious beliefs because not all religions are worthy of constitutional protection. He denigrates Mormons, asserting that “Mormons practice incest and child marriages,” and proclaims that “Wicca is a cult, not a religious belief.” He admonishes that “this court is committing a grievous error if it allows cult activities to be protected” and that the “trial judge appropriately ruled in this case after carefully considering the facts.” In light of the appellee’s further illumination of this issue, I simply cannot say that the trial court’s decision was “appropriate.” I lament that this court has accepted the appellee’s invitation to embark on a grand inquisition.

– Hicks v. Cook, dissent on denial of rehearing

Be Respectful and Professional

Walker contends that the brief submitted by Ligon shows a “clear personal bias” and is “replete with sarcasm and vituperation masquerading as legal argument.” Although we do not find any impermissible bias in this case, we agree with Walker that the Executive Director’s brief is unprofessional in tone and improper in some of its content. Ligon’s brief contains unnecessarily sarcastic remarks and, at one point, invites the court to look outside of the record to examine matters that were not before the special judge. This is improper argument.– Ligon, Executive Director Of The Supreme Court Committee

On Professional Conduct v. Walker (3/12/2009)

Purpose of Briefs

“The overarching objective of a brief is to make the court’s job easier. Every other consideration is subordinate.”– Scalia and Garner, p. 59

Citations

Citations are the way you tell the Court the authority for the legal arguments you are making.

Follow the Bluebook Double check the citations “Shepardize” or electronically check

each citation.

Order of Citations

There are some general guidelines in the Bluebook, but they were written with law journals in mind.

Here’s what I’d suggest:– Most helpful first.– Most recent before older cases (the precedential

or persuasive effect is less likely to have been diminished by more recent events)

– Controlling before persuasive

Controlling before persuasive

The Arkansas Supreme Court controls on questions of Arkansas law.

If there is no Arkansas Supreme Court opinion, then you can go to the Arkansas Court of Appeals

Thereafter, federal courts which have interpreted Arkansas law under the Erie doctrine

Thereafter other courts.

Other Authority

A constitutional provision on point controls.– In the federal system, there’s hardly a word

of the Constitution that hasn’t been worked over by the Courts

– In the State system, there are a lot of surprises in the Arkansas Constitution

Other Authority

A statute—unless it’s unconstitutional—controls. Federal statutes may “preempt” state law.

That’s a federal Constitutional doctrine, and it can get very confusing.

Statutes have often been interpreted in great detail, and it may be more persuasive to cite a case relying on the statute than the statute itself, especially where the language of the statute does not clearly say what the Courts have interpreted it to say.

Secondary Authority

Law Reviews American Law Reports (ALR)

annotations Treatises (some more respected than

others) “Hornbooks” are usually something from

Law School, but are occasionally persuasive secondary authority.

Procedural phrases

“In re” means “in the matter of” The phrase is used in one name styles, but when there’s an adversary party, it should be left out

The only procedural phrase that should be used when there are two parties is “ex rel” which means “for the benefit of”

Abbreviations

If the whole name of a party can be abbreviated by commonly recognized initials, that’s ok– NLRB v. Widgets, Inc.

• Bluebook, 18th Ed. Rule 6.1(b)

Otherwise, do not abbreviate the first word of a party’s name

Abbreviations

In the text of the brief, as opposed to a citation sentence, there are only a few words that should be abbreviated

Ass’n Bros. Co.

Corp. Inc. Ltd.

No. &

Abbreviations

When not part of the text, additional abbreviations are permitted.

This would most commonly be in a separate citation sentence or a “string cite.”

Names of parties

With individuals, you usually just use the last name.

Some foreign names create complications. – Chinese names often start with the

“surname.” The tradition has been to give the whole name.

• Mao Zedong v. Li Po

Spanish and Portuguese Names

The surname is often composed of the first surname of each parent. Just remember that the last name of Juan Sánchez Rivera may be Sánchez Rivera. It gets confusing, and often enough the courts or the publishers get it wrong, too.

Cases from other states

Some states—like Arkansas—have official reporters. – Smith v. Jones, 343 Ark. 253, 55 S.W.3d 424

(1997).

Some states do not have official reporters. Then you just give the West’s cite, and put the state in parentheses. – Coyote v. Acme, Inc., 854 P.2d 423 (Colo. 1983).

Cases from other states

The new blue book rule is to only use official reporters in the state in which the brief is filed.– Therefore, in an Oklahoma Court, Smith v.

Jones would be Smith v. Jones, 55 S.W.3d 424 (Ark. 1997).

Arkansas is going to give the Blue Book writers fits.

Law Reviews

One difference between your textbook and the Sixteenth Edition of the Bluebook is that student authors’ names are to be used.

The old rule used to be that the student’s name was left out, and you just used designations like “Note.” or “Comment.”

Quotations

Remember the 50 word rule. When a letter is changed from upper to

lower case or vice versa, indicate the change with brackets.

When words are omitted, use three periods separated by spaces

Citations go to the left margin after a block quote

Late update

After I prepared the written material for the last seminar,I came across Elizabeth Bloch’s material for a Texas CLE.

She said that some judges look to the table of contents to see what the appeal is about. So she recommends fleshing out the table of contents with all your points, and write the points so the judge who starts with the table of contents will know what your case is about.

Statement of the Issues: Framing a Picture, not a Puzzle.

Bryan Garner’s article. All schemes have drawbacks. Garner’s

drawback is that it requires too much work. Honestly, I’m frequently too lazy to do it right.

Still, if you’re simply aware of this methodology it will improve your analysis.

Writing the Statement of Facts with Simplicity and Relevance

Take off your advocate hat. Hold it behind your back. Tell the story objectively, but make sure

to get in all the details that the court is going to hear.

That means getting the bad stuff out up front—unless you’re certain your opponent has forgotten it.

Footnotes and Authority Citations

Again, Scalia and Garner are excellent. Even when they disagree they are very

informative. If there’s any doubt, opt against

footnotes in Arkansas appellate courts. I’ve used footnotes in trial courts to

make sure I’ve raised all the issues.– It may not work.

The End

Thank you for coming to see the show.