Texas Appellate Law Blog : Texas Appellate Lawyer & Attorney : D. Todd Smith Law Firm : Appeals, Sanctions, Summary Judgment : Austin, Texas

Let's be honest.  Most state-court appellate practitioners find the Fifth Circuit a little byzantine.  But one thing the Fifth Circuit does right is allow the clerk's office to grant short unopposed briefing extensions—up to 15 days—over the telephone.  The circuit court has even done away with the requirement that the requesting counsel send a confirmation letter to the clerk, with a copy to all parties.

Briefing extensions are pretty easy to come by in state appellate courts, but they're not just a phone call away.  I can think of one or two other federal rules that the Texas Supreme Court ought to consider emulating when considering future rules changes.  For example, why not adopt some variation of FRAP 28.1 to deal with cross-appeals?

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Over at his Legal-Writing Blog, Prof. Wayne Schiess offered up what one of his students wrote after expressing the desire to become an appellate lawyer and after working in the appellate-practice group at a law firm:

I learned some valuable lessons about appellate practice, and the difference between enjoying something in school and enjoying it in a law-firm setting.  The appellate group at the firm was very busy.  The partner I worked under was churning out two to three briefs a week. In my final few weeks at that firm, he gave me an opportunity to write a brief completely by myself.  It was an eight-page reply brief regarding a mandamus request to stop the discovery of certain documents.

Over the course of the next two weeks, I pored over the trial record, the appellee's brief, and the privileged documents.  I enjoyed it just as much as I had enjoyed brief writing in school.  But the time pressure was much greater, and the ability to fine tune and perfect my work was much less.  In the end, the experience made me realize something critical: Legal writing, on a high level, can be rewarding and interesting, but it can also be utterly draining.  I realized why appellate lawyers at law firms are stereotypically labeled as the smartest lawyers at the firm.  The fact that they can come to work, day in and day out, and spend hours thinking and writing at such a level makes them nothing less than brilliant, if you ask me.

Prof. Schiess wrapped up the post by saying, "Hats off to all you appellate lawyers, then."

I commented and added the following two cents:

That is indeed valuable insight.  Too often, law students have a pie-in-the-sky view of what appellate practice is really like.  Yes, you're more in control over your daily schedule than trial lawyers usually are.  But the average billable hour as an appellate lawyer is far more challenging mentally.  (And I should know, having done both for most of my career, though I'm heavily tilted toward appellate work now.)  Week after week of brief after brief can wear on you, but we press on because we enjoy the work and the challenge of changing (or holding onto) the result.

Thanks to Prof. Schiess for starting this discussion and to Elana Einhorn for bringing his post to my attention.

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Faced with an opposing brief that preceded a conclusion with the word "clearly," my first supervising partner sometimes responded with this quote from Texas Supreme Court Justice Nathan Hecht:

I have learned in more than a decade of judging that what is claimed to be clear seldom is.

Nathan L. Hecht, Foreword to W. Wendell Hall, Revisiting Standards of Review in Civil Appeals, 24 St. Mary's L.J. 1041, 1043 (1993).

I always thought this was an effective—if pithy—way of highlighting the weakness in reasoning that intensifiers tend to reveal.  Now, a legal-writing professor and a statistics professor have teamed up to show a correlation between using intensifiers in appellate briefs and bad appellate outcomes.   It's not a causal relationship, mind you, but the study provides another reason to avoid lapsing into "an intensifier-rich mode of writing."

Thanks to Rob Gilbreath for bringing this article to my attention.

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Wayne Schiess, the head of UT's legal-writing program and author of Wayne Schiess's legal-writing blog, spoke to the Austin Bar Association's Solo & Small Firm Section last week.  Following the premise that lawyers are professional writers—an observation that applies with even greater force to appellate counsel—Prof. Schiess suggested a three-step process for improving one's legal-writing skills:

1. Practice:  I suppose it's a truism that you can't become good at anything without performing the task repeatedly.
    
2. Study:  Prof. Schiess recommends that we consult and rely on the best resources.  Aside from a good dictionary, The Chicago Manual of Style, Strunk & White's The Elements of Style, and his own Better Legal Writing, among others, Prof. Schiess praised Bryan Garner's The Red Book:  A Manual on Legal Style as a resource aimed directly at lawyers.
     
3. Open Yourself to Honest Critique.  Though self-explanatory, this step might be the most difficult of the three.

I felt pretty good after hearing what Prof. Schiess had to say.  I don't lack for practice, and I'd like to think I'm fairly open to honest critique, especially since clients and other lawyers review my work product on a regular basis.  (One might ask whether lawyers are good judges of effective legal writing, but that's the subject of another post.)  Where I need improvement is in the "study" phase.  Although I enjoy that part of the process—I have been a Garner disciple since I attended one of his seminars before I started my Big Law job more than 10 years ago—like everything else, it's a challenge to find the time.

9/21/08 Update:  Prof. Schiess discusses these ideas in his own words here.

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As part of my year-end spending spree (which my accountant recommended to maximize business deductions—but that's another story), I purchased the 18th Edition of The Bluebook: A Uniform System of Citation.  Now, the good folks at Harvard Law Review have announced that they are making an online version available on a subscription basis.  Figures.

Hat tip to The California Blog of Appeal.

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As a follow up to this post on the status of e-filing in the Texas appellate courts, the Third Court of Appeals is now accepting electronic courtesy copies.  The court is also asking (but not requiring) the party responsible for requesting or filing the record and briefs to submit e-copies of such documents on a CD or DVD in searchable PDF format.  For specific guidelines, see the "Electronic Filing" link on the court's web site.

I haven't surveyed the otherintermediate appellate courts, but if they aren't doing thisalready, they certainly should follow the Third Court's lead.

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In a thought-provoking series over at his legal-writing blog, Wayne Schiess ruminates on the reasons why modern legal writing isn't what it should be.  Among the causes he cites are a primary and secondary education system that doesn't emphasize writing education adequately, reliance on poorly written judicial opinions and form documents, merely superficial understanding of legal authorities and transactions, and a lack of time to edit one's work appropriately.  All legal writers at all levels should read and reflect on these posts.

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I filed a brief recently in which I made the decision to discard an issue litigated at trial in favor of stronger arguments that, in my judgment, provide better prospects for obtaining appellate relief.  Ray Ward, author of the (new) legal writer, compares this exercise to the "kitchen-sink" approach.  According to Ray:

When we try to narrow down the issues and arguments in a brief, throwing out the weak ones and keeping the strong ones, we take a risk: the risk that we may be getting rid of something that would have persuaded the judge.  So should we get rid of those weak issues and arguments?  Yes, we should, because the risk created by throwing them in is greater than that created by throwing them out.  Kenneth Oettle says it better than I can:

Gamblers will continue to gamble even as their stakes dwindle as long as they receive intermittent, unpredictable payoffs.  This is how slot machines work.  Random payoffs keep the patrons pulling.  So it is with weak arguments.  We have all won something with a weak argument, so we keep using them.  We seem to think that persuading a judge is a matter of pushing buttons until we find the right one.  The right argument is, in a sense, a button—if you press it, you persuade.  But weak arguments are buttons, too, and unlike the Close Door buttons on elevators, they are connected to something.  At a minimum, weak arguments hurt your credibility and cast doubt on your belief in your case; they irritate the court because they lengthen the brief; and they may even insult the court's intelligence.

James McElhaney says the same thing in a different way:

Are there risks in [discarding weak arguments]?  You bet.  Good legal writing is good writing.  It's also good lawyering.  Good writing and good lawyering both involve taking risks.  That runs counter to our law school training, where we were rewarded with good grades for spotting and articulating every conceivable legal issue but were almost never expected to drop the ones that wouldnt fly in the real world.  Nobody told us that failing to toss out the arguments that would not fly ultimately runs a bigger risk:  creating a mishmash of legal theories that produces lumpy, sodden writing.

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Ray Ward at the (new) legal writer has posted an article he wrote entitled How to Write an Appellate Brief, in which he breaks down the briefwriting process he uses and takes the reader through it from start to finish.  The article is full of practical advice and is a useful read for appellate novices and experts alike.  Give it a look.

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Earlier this year, Jeffrey Kyle took over for Diane O'Neal as clerk of the Third Court of Appeals here in Austin.  With that change came a significant revision to the Court's local practices.  Before, an appellee could file its brief anytime up until the case was formally submitted to the Court, which could occur several months (or longer) after the filing of appellant's brief.  Now, in conformity with Texas Rule of Appellate Procedure 38.6, appellee's brief is due 30 days after appellant's (20 days if the the appeal is accelerated), and appellant's reply brief is due 20 days later.  The Court now requires a motion for extension of time to push these deadlines back.

The online version of the Court's local practice guide (¶57) reflects this change.  The printed versions I have seen do not.   Moral:  Don't rely on memory when advising clients (or yourself) about impending deadlines.  As stated here before, always check the rules.

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Ray Ward at the (new) legal writer mentions two self-editing tips in this post, one familiar and one not.  The first is to put away your draft for a while and come back to it later with (hopefully) a fresh set of eyes and an open mind.  The second, which might be particularly useful if you are short on time, is to change the font in your document before printing it to edit.  Like Ray, I haven't tried the second option, but I agree it makes sense.

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Ray Ward at the (new) legal writer has this great post listing his favorite online writing resources.  He includes references for dictionaries, quotations, briefwriting, and citations, among other things.  I haven't looked at all of Ray's suggestions yet, but I expect to add many of them to the Useful Links section (in the right-hand column) so that anyone who is interested will have easy access.

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Steve Merican over at the Illinois Appellate Lawyer Blog recently posted some interesting comments about the role of oral argument to the appellate decision-making process.  Within that post, he linked to an article he wrote entitled How to Write an Appellate Brief That Judges Want to Read and Answers Their Questions.

Like most appellate advocates I know, I'm a fan of oral argument in appropriate cases, such as when the law is unsettled.  But as a rule, to rip from Steve's observation while paraphrasing a Pat Riley quote, "your brief is the main thing."  The importance of presenting a persuasive, well written brief that anticipates the questions appellate justices might have can't be emphasized enough.

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Short on time to edit a brief?  Looking for a way to help catch passive voice in your writing?  If you are a Microsoft Word user, I've got just the trick for you. 

In the Grammar Settings dialog box (Tools / Options / Spelling & Grammar), select grammar and style instead of grammar only.  With that change, Word will alert you when it locates passive voice, just as it highlights sentence fragments and misspellings.  There are several other items you can customize.

Thanks to Susan McDonald and Lynn Gaertner-Johnson for the tip.

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Over at Legalwriting.net, Wayne Schiess has posted his observation that many lawyers fail to use an "apostrophe + s" to create the possessive of a word already ending in "s."  Professor Schiess notes a connection between this tendency and newspapers' use of this form.  (Yes, it's OK to use only an apostrophe when the word is already plural.)

I admit that I sometimes backslide when writing "court of appeals" as a possessive.  "The court of appeals's ___" often seems awkward and too attention-grabbing.  Other than to rewrite the sentence to avoid the possessive (which tends to create passive voice problems), I haven't come up with a satisfactory solution.  Fortunately, Professor Schiess seems to have given those struggling with this issue a free pass.

The notion that newspapers can influence legal writing reminds me of Roger Hughes's piece in The Appellate Advocate called Legalese in the Age of IM (Instant Messaging).  If newspapers hold that kind of sway, how long will it bebefore we start seeing IM slang in legal briefs?  If Roger's tongue-in-cheek prediction holds true, it's only a matter of time.

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For the past decade or so, appellate lawyers have been taught to avoid the passive voice in their writing (the preceding sentence notwithstanding).  But Dr. George Gopen of Duke University says that advice, as well as other principles emphasized in today's writing courses and CLEs, is wrong.

UT's Wayne Scheiss, author of Legalwriting.net, has taken Dr. Gopen to task for some of his ideas, including his challenges to the notions that shorter is better and that one should always begin a paragraph with topic sentence stating the issue and point of the paragraph.  Read Dr. Gopen's response here.

This is an interesting debate.  I can accept that passive voice has its place if used sparingly, but I must admit that some of Dr. Gopen's ideas challenge the way I think about legal writing.  Ultimately, I agree with Ray Ward over at the (new) legal writer, who summed up his feelings this way:

I have found Strunk & White, Plain English for Lawyers by Richard Wydick, and the things Wayne teaches helpful.  I've also found helpful books by Bryan Garner, Ed Good, Mark Painter, John Trimble, William Zinsser, Patricia O'Conner, and Roy Peter Clark.  I've read, and recommended, George Gopen's books.  Read them all.  Learn what you can from all of them.  But don't think that any one of them will give you The Whole Truth.  Whatever you think you know, there's always more to learn.

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