De Novo: A Virginia Appellate Law Blog

De Novo: A Virginia Appellate Law Blog

Jay O’Keeffe practices with Gentry Locke Rakes & Moore in Roanoke, Virginia, where he splits his time between appellate and business litigation. read more

Guest Post: Confessions of an Oral Argument Junkie

Posted in Oral Argument, Uncategorized

Wooden Confessional isolated on white.

Here’s a guest post from my partner and longtime friend of De Novo, Monica Monday, in which she owns up to her personal demons (such as they are):

I admit it. I am an appellate argument junkie. This has been a long-standing problem, but when the Supreme Court of Virginia began releasing audio recordings of its oral arguments earlier this year, my habit took on new dimensions. I can now listen to hours of appellate argument without leaving the house, car, or office. This has brought new purpose to my long daily commute (I hope the legislature will not make this illegal), and I’m totally hooked.

But what’s the big deal, concerned friends ask – audio recordings of Fourth Circuit arguments have been available for some time now. It’s true, so what is the big deal? Supreme Court recordings provide a look at the Court as a whole and how the justices interact with each other. Except for the rare ocasion when it sits en banc, the Fourth Circuit hears most arguments in panels of three, limiting a study of that Court as a whole.

Whatever the reason for my obsessive interest in these audio recordings, they have reinforced some suspicions I have had about the Supreme Court, and appellate arguments in general. And, they have provided some new insight as well.

First, the justices are talking to each other when they ask their questions. This is something that is hard to follow during the heat of oral argument. However, listening to the argument after the fact, it is clear that many questions are not really for me, but are directed towards another justice, or the entire Court. The justices are really discussing the case with each other and trying to convince their colleagues on the bench of their position.

So does this mean that my answers don’t matter? Am I just a pawn on the Court’s chess board? Not at all. My answers to those questions can influence that private, judicial discussion – and the ultimate outcome of the case – by showing why my position is right.

Second, some questions are not at all what I thought they were at the time. During argument, it can be difficult to really listen to the Court’s questions when you are focused on delivering the argument you have prepared. Things become clearer with the luxury of hearing the argument again without the stress of being in the middle of it. In particular, I have noticed that some questions were not exactly what I thought they were at the time; rather, the Court was asking something slightly different.

Good listening at oral argument is hard. It requires us to focus on the Court first, and our prepared argument second. Because the Court is the decision-maker, though, we must understand its concerns and questions so we can respond meaningfully. If we haven’t answered the Court’s questions, then we have not done our jobs as oral advocates. So, be flexible during oral argument. Weave the important points of the argument into your answers, but make sure you are addressing the issues the Court wants to discuss.

Third, the Court genuinely wants to understand your argument and the ramifications of its decision. This is why the justices ask hypothetical questions – to test the boundaries and effect of its ruling in future cases involving different facts. And this is why it may press the advocate to define the scope of the ruling he seeks and to explain the effect of that ruling. Concisely explaining the scope and limiting principles of your position will greatly assist the Court in understanding the effect of adopting your position, and becoming comfortable with it. Embrace the opportunity to help the Court do its job well.

Finally, audio recordings only tell you half the story. Listening to an audio recording of an argument I heard – or delivered – is a different experience than being there live. The visual, relational, and intangible aspects of the live argument cannot be captured on an audio tape. Thus, many essential ingredients to an effective oral argument, such as genuineness, credibility, eagerness, passion, engagement, and rapport with the Court are not fully experienced on an audio recording.

Therefore, being there in person is the only way to fully appreciate the argument – although that won’t stop me from listening. And, you should not agree to argue your case by phone – that separation prevents full engagement with the Court.

You can access the audio recordings from the Court’s merits arguments since January 7, 2014, at

Adding Insult to Injury? Virginia Code Section 8.01-682 and the Mysterious $250 in Damages

Posted in Appellate Practice, Uncategorized

We get questions about this a lot.

When the Supreme Court of Virginia issues a mandate affirming a judgment, it will sometimes include this line: ‘The appellant shall pay to the appellee two hundred and fifty dollars damages.”



Occasionally, the appellee maybe curious about his unexpected windfall. But when you’re on the wrong end of one of these mandates and you haven’t warned your client in advance, brace yourself for great vengeance and furious anger understandable consternation. It’s bad enough that the appellant has  lost her appeal. Now she has to pay two hundred and fifty dollars to the appellant? Where did that come from?! It probably doesn’t help that the Court”s form language doesn’t explain the damages or cite any authority. The whole thing can seem a little arbitrary.

It’s not. And the Court isn’t being mean or piling on. If anything, the Court is being charitable.

That’s because Virginia Code Section 8.01-682, “What damages awarded appellee,” states:

When any judgment is affirmed, damages shall be awarded to the appellee. When the judgment is for the payment of money, the damages shall be the interest to which the party is legally entitled from the date of filing the notice of appeal until the date the appellate court issues its mandate. Such interest shall be computed upon the whole amount of the recovery, including interest and costs, and such damages shall be in satisfaction of all interest during such period of time. When the judgment is not for the payment of any money, except costs, the damages shall be such specific sum as the appellate court may deem reasonable, not being more than $2,500 nor less than $150.

When it affirms a nonmonetary judgment, the SCV has no choice but to award the appellee between $150 and $2,500 in damages. The General Assembly has tied its hands. In fact, the General Assembly amended the statute in 2010, increasing the maximum damages award from $100 to $2,500.

The Court’s $250 award is actually pretty charitable when viewed in that context. (And for some reason, the award always seems to be $250; off the top of my head, I can’t remember a case where it awarded a different amount.)

Would it soften the blow if the Court cited authority for the award? Sure. It would also soften the blow if adverse rulings came on Hallmark cards, with a personal note of apology. But we’re all grownups, and part of the reason that people hire appellate lawyers is to explain these mysteries.

Legal Research: How Do You Know When Enough Is Enough?

Posted in Appellate Practice, Uncategorized


I’ve never been any good at figuring out when I’m done with a legal research project. This will come as absolutely no surprise to those who know my many personality flaws and obsessions.

For most questions, I can get the right answer in less than two hours, a definitive answer in less than two days, and a robust, scholarly understanding of the area of law in less than two weeks (but why stop there?). Figuring out which of those benchmarks is appropriate for a given task, however, or when I’ve reached it . . . well, that’s a little tougher. And things only get more complicated when I try to bring in an associate to help. Because, you know, control. OCD. Catholic guilt. And such.

With that in mind, here are some guidelines that I’ve developed over the years to rein in my worst impulses:

  1. What kind of appeal are we handling? Broadly speaking, there are two types of appeals: cases where you ask the court to correct an error, and cases where you ask the court to develop the law. To argue either case, you need to understand how the law works and why it works that way. But to argue a law-development case, it’s often helpful to have a broader and deeper understanding of the law. You’ll want to know, for example, how other jurisdictions have handled the issue, whether there’s a clear majority rule (and why), and if the law  is moving in a particular direction. The same information can be helpful in an error-correction case, of course, but it’s not always as necessary.
  2. Have we checked the obvious boxes? I tend to work my way through research problems methodically. I start with reliable secondary sources to get a broad understanding of the area of the law. (Big fan of context here.) Then I look at statutes and rules. Then I read the cases that showed up in my secondary sources and annotations. Then–and only when I understand what I’m looking for and how it fits into the area of law–I run some keyword searches and Shephardize my major cases for research. If I’m working with an associate–and I sometimes have to, because at my advanced age I’ve lost the luxury of spending days in the library–I’ll make sure that he or she has run through these steps. I would hate to learn that we found the answer to a civil procedure question in 20 minutes based on a word search without checking the rules or Wright and Miller. Don’t laugh. These things happen–even (and maybe especially?) at great big Am Law 200 firms.
  3. Am I bored yet? In most research projects, there’s a point where you see basically the same ideas showing up, with citations to the same authorites. When you reach this point, you’ll be able to rattle off those ideas, and you’ll have read the pertinent authorities, and you will know how they all fit into the broader legal landscape. This is where boredom sets in. I consider the boredom threshold the point where I know the answer to a legal question.* This may or may not be when I stop researching. Sometimes, I want to read every single case from a court on a certain point, so I can say things like “This Court has never held that . . . .” Other times–and especially in a law-development case–I will keep researching well past the boredom threshold because I want to see what other courts have done. If another court has gotten the wrong answer for a compelling reason, I’d like to know that before I submit my brief.
  4. Can I answer the tough questions? From an early point in the appellate process, I keep a list of “tough questions” that I should expect from the judges or justices. Sometimes these questions sound like “Have we ever ruled that . . . ” or “Do you have any authority for that proposition?” If I can’t answer these questions, then I’m not done yet.
  5. Can I explain it to Caroline? I have three kids: Caroline is 8, Jack is 5, and Cricket is 3. When I am comfortable with a case, I can explain it to Jack. When I am comfortable with an area of law, I can explain it to Caroline. And as any parent will tell you, there is no sense explaining anything to a three-year-old, so Cricket remains largely useless as a benchmark.

That, in a nutshell, is what I do. What do you think? Have I left anything big out?

*Unfortunate fact of legal practice #364: junior associates have no boredom threshold. This is why they are unable to meaningfully answer any legal research question and will instead hand you a 25-page, single-spaced memo that says “maybe.”

The Most Important Part of a Fourth Circuit Brief?

Posted in Uncategorized

What’s the most important part of a Fourth Circuit brief–the festively colored cover? The elegant binding? The dead cockroach that your printer smooshed between pages 19 and 20? 

That Law Hammer is more than just a classy paperweight--it's also a brutally effective pest-control device.

That Law Hammer is more than just a classy paperweight–it’s also a brutally effective pest-control device.

Steve Klepper has a thought-provoking post over at the Maryland Appellate Blog in which he argues that the most important part of a Fourth Circuit brief is actually the request for oral argument. His argument runs something like this:

  1. The Fourth Circuit reverses its district courts about as often as Hodor wins a debate;
  2. But it grants oral argument in a comparatively generous 11% of cases;
  3. In virtually every case that the Fourth Circuit reverses, it grants oral argument; and
  4. The odds of reversal rise to about 1 in 3 once the Court has granted oral argument.

Therefore, Steve concludes, an appellant’s first job is securing oral argument.

I very much enjoyed his post, but I quibble slightly with Steve’s conclusion because I suspect that it confuses correlation and causation. The good appeals will tend to garner both oral argument and reversal, but I don’t think that they necessarily result in reversal because the court granted oral argument. Instead, both the grant of the oral argument and the ultimate reversal flow from the merits of the case.

Think about it: Most of the appeals the Fourth Circuit hears are tedious dreck, and the vast majority result in affirmance in unpublished opinions–and rightly so. The Fourth Circuit doesn’t grant oral argument very often simply because most cases don’t warrant it. Every so often, though, an interesting case comes along that warrants oral argument. By their sheer scarcity, cases meriting reversal probably qualify as interesting.

Also, the grant of oral argument is not an unqualified boon. While there’s no question that a solid oral argument can help an appellant’s cause, a poor oral argument can also do tremendous damage. For example, your printer will all but guarantee you oral argument by inserting the aforementioned cockroach into your brief (trust us on this), but he wouldn’t be doing you any favors (again with the trusting).*

For my money, the most important part of a Fourth Circuit brief is either the statement of the case or the summary of the argument, depending on the case. But I hear what Steve is saying, and the rest of his post strikes me as spot on. For example, he points out that, while Local Rule 34(a) offers no guidance about what the statement concerning oral argument should contain, Local Rule 36(a) says that the Fourth Circuit will publish opinions only in cases where it has heard oral argument. Local Rule 36(a) also helpfully identifies the Court’s criteria for publication:

  1. The opinion establishes, alters, modifies, clarifies, or explains a rule of law within the Circuit;
  2. It involves a legal issue of continuing public interest;
  3. It criticizes existing law;
  4. It contains a historical review of the legal rule that is not duplicative; or
  5. It resolves a conflict between panels of this Court, or creates a conflict with a decision in another circuit.

An effective statement concerning oral argument will check as many of these boxes as possible. As Steve points out, the first, second, and fifth factors mirror the certiorari factors that the Supreme Court of the United State considers. Thus, it may be helpful to think of the statement concerning oral argument as a miniature cert petition. But however you treat it, the section deserves to be far more than an afterthought.


*The cockroach story is something of a Gentry Locke urban legend; it’s likely apochryphal and supposedly involved a lawyer who no longer works here. I do not know the identity of the guilty printer–the incident predated my time here–but our current printer, Lantagne Legal Printing, is fantastic.

Seven Appellate Tips from a Seventh Circuit Judge

Posted in Appellate Practice, Briefs, Oral Argument

Gaze upon his fearsome visage.

I was flipping through the latest volume of The Scribes Journal of Legal Writing when I came across  an interview that Bryan Garner did with (then-Chief) Judge Frank Easterbrook of the Seventh Circuit back in 2007. Bryan A. Garner, Interview with Judge Frank H. Easterbrook, 13 Scribes J. Legal Writing 1 (2013).

Inveterate Garnerphile that I am, I was drawn to the piece, its vintage notwithstanding. The interview concludes by noting that Judge Easterbrook recently delivered a lecture on appellate advocacy, which was published as Frank H. Easterbrook, Friedman Lectures in Appellate Advocacy, 23 Fed. Cir. Bar. J. 1 (2013).

What does all of this have to do with Virginia appellate practice? Two things.

First, the two articles are loaded with helpful appellate practice tips that work just as well here as they do in Chicago. 

Second, Judge Easterbrook’s brother is the tastefully named Gregg Easterbrook, who not only writes the delightful Tuesday Morning Quarterback but has also devoted inordinate time and resources to convincing the world that Virginia Tech runs a model football program. (Cody Journell and Michael Vick’s puppies beg to differ.)* 

Appellate practice + Virginia Tech Football = Virginia appellate practice. QED.

A stretch? Maybe. But I’m going to go with it because I get a kick out of the raw savagery of Seventh Circuit practice.

Anyway, here are some of the highlights of the two articles, in no particular order:

  1. Rebuttal in Oral Argument. Garner asked Judge Easterbrook how to best use rebuttal time in oral argument. The response was classic: “The very best use of rebuttal time is not to use it.” Overall, this is excellent advice. Waiving rebuttal not only signals confidence in your argument, but it also prevents you from saying something stupid at the last minute, thereby wresting defeat from the jaws of victory. But this also brings up an intersting dynamic in the Supreme Court of Virginia: Justice Goodwyn is developing a terrifying habit of sitting quietly through each party’s affirmative argument, then asking a devasting question on rebuttal. Did his understanding of the case just crystallize during argument–or has he been lying in wait the whole time, like a sniper in a black nightgown, just waiting to punish the appellant who says one word too many? Either way, I don’t think that the Court will let you waive rebuttal if one of the Justices still has an issue or two to sort out.
  2. Can You Win a Case at Oral Argument? Judge Easterbrook thinks so: “It is possible to win cases at oral argument. I’ve seen it done. I’ve seen it done watching other advocates do it. I seen it done as a judge.” And how do you do that? By participating in a conversation with the panel, paying careful attention to its questions, and answering the hardest questions that the court can throw at you.
  3. Don’t Ever Say that You Didn’t Try the Case Below. Total copout. If you’re not sufficiently familiar with the record to answer the judges’ questions, then what are you doing at the lectern in the first place? Judge Easterbrook has considered instructing a law clerk to shoot spitballs at any lawyer who tries to dodge a question this way. The panel already knows that you weren’t trial counsel. This just isn’t helpful. On the other hand, Judge Easterbrook notes, it is very impressive to a judge when you are able to answer a fact-based question with a precise citation to the record. And here’s the trick: If a lawyer is familiar with the Court, he should be able to anticipate the key questions about the record and include the pertinent citations on an index card or an argument module.
  4. Think Like a Judge. Judge Easterbrook notes that appellate judges are generalists–and extremely busy generalist at that. The first step in crafting an effective presentation is to keep both of these aspects of the judge’s life in mind. This means that the appellate lawyer “serves as a translator, taking a specialist’s knowledge and making it accessible to a generalist.” That necessarily includes translating jargon and acronyms into English, and providing sufficient background and concrete examples to ground your argument.
  5. Know Your Audience. This point is handled so well that I’ll just quote it verbatim: “The Court’s work is of a piece; Oliver Wendell Holmes would say that particular decisions were just fragments of a single fleece. To see what happens in one case is to know how best to approach the next. Interpretive principles and strategies are common across cases. Both reading the opinions and watching the arguments tells you what kinds of contentions are congenial and what kinds are not. Judges can reveal this information by facial expressions as well as by spoken questions or expressions of exasperation in opinions.” 23 Fed. Cir. B. J. 6 (footnote call omitted). Elsewhere, Judge Easterbrook cites Holmes for the proposition that a jurisdiction’s highest court recapitulates the law in that jurisdiction every 20 years. Bottom line: It’s crucial to keep abreast of new opinions as they are issued, and there’s no substitute for actually watching oral argument.
  6. Stay Positive. Litigation too often devolves into a cycle of denial: the answer denies the complaint, the motion for summary judgment denies the answer, the appellant’s opening brief denies the district court’s conclusions, and so it goes. “This is a trap. You don’t win cases by explaining where the other side messed up, or where some judge erred. You win cases by presenting the winning argument. That is, explain why you are right, and not why someone else is wrong.” Id. at 6-7.
  7. BUTTERICK! Finally, Judge Easterbrook closes with a paean to typography, which is “frequently horrid” in the briefs he sees. He closes with a shout-out to Matthew Butterick’s Typography for Lawyers, which is just a dazzling little book and a solid addition to any lawyer’s library. Said the dork whose partners call him “Atticus Font.”

Both articles are full of other great stuff – disdain for adverbs and adjectives, warnings about the dangers of law clerks, and a discourse on the importance of appellate jurisdiction. They’re well worth a read.

*Cordell Parvin just disowned me.

How to Get a Writ Granted and Other Tips from the Justices

Posted in Briefs, Oral Argument

Helpful Tips

The VTLA just wrapped up another terrific annual meeting at the Homestead. I learned many things during the CLE sessions, including that I would like to be Mike Imprevento when I grow up.

But one of the absolute highlights of the meeting was a session called “Supreme Court Thoughts and Muses,” in which Jeffrey Breit moderated a panel made up of Justice Lemons, Justice McClanahan, and Justice Powell.

One of Breit’s best questions was something along the lines of: “When we are arguing before a writ panel, how do we get the Court to want to grant our appeal?” This is a particularly timely question, given the impending appellate apocalypse in Virginia state courts.

Justice Lemons responded that appellate arguments are all about keeping score, and that during the writ stage, you need to convince only one justice to grant your appeal.That’s it. Just one. (The merits stage demands multivariable calculus by comparison; it usually requires you to count all the way to four.) Although a writ panel is made up of three or four justices, the petitioner can always force the entire Court to review his argument by filing a petition for rehearing. But he still needs to convince only one justice. Not having to assemble a majority, or even convince more than a single person, should allow the petitioner to tailor his or her argument to a justice who is likely to be sympathetic to the petitioner’s arguments, based on past jurisprudence.

Justice Powell added that, at the writ stage, the fact that a case is one of first impression will often get her attention and make her more likely to grant the appeal. Justice McClanahan amplified that answer, noting that it’s necessary to convince the Court both that your case is one of first impression and that it’s a case worth the Court’s time to hear. The focus at the writ stage is on why the Court should take the case in the first place, not why the petitioner should have won below. Justice McClanahan also warned listeners that if they assert multiple assignments of error, the Court will want to know if it needs to grant all of them. That is a common query at the writ argument. Petitioner’s counsel should come in ready to respond.

On the subject of oral argument, Breit asked the justices whether they discuss cases before oral argument.

Justice Lemons offered a historical perspective. When he first came to the Court, those discussions did not take place. The Court’s culture at the time forbade discussions of cases before oral argument. The first conversation about the case took place at the decision conference after oral argument. That is no longer true. Now, the justices talk to each other by e-mail and telephone, discussing things like how they feel about particular issues, or whether they believe points were preserved for appeal. Justice Lemons urged the lawyers in the audience to remember this image: When they stand at the lectern, they are enjoying their first and only chance to participate in the Court’s discussion of the case. He noted that anecdotal evidence shows that nationwide, the outcomes of 15 to 20% of cases are affected by oral argument.

Another interesting tidbit from the panel: Justice Powell is the only member of the panel who reads like a normal human being. From start to finish. More specifically, she reads the briefs in the order in which they are submitted, starting with the opening brief of the appellant, moving on to the appellee’s brief, and finishing with the reply brief.

Justice McClanahan, on the other hand, starts with the reply brief, because when it is done well it will go directly to the flashpoint of contention in the case. (Also, when done poorly, the reply brief just regurgitates the arguments from the opening brief–but it does so in 15 pages instead of 50.) There is a certain logic to this approach. I’ve heard  of other judges reading this way, so I do try to start my reply briefs with an introduction that recalibrates the arguments after the appellee’s offensive.

And then there’s Justice Lemons, who employs a method that is somewhat more difficult to anticipate. He waits until all of the briefs are in. Then he starts by reading the summary of the appellant’s case. (Important note to appellants: Please include a summary of your argument for Justice Lemons. You’re welcome.) Having been at this game for a while, Justice Lemons knows what the Court has decided, what it hasn’t, and what areas of the law he feels that it needs to develop. So after reading the summary of the appellant’s case, he goes directly to the portions of the brief that are interesting to him and reads them piecemeal. He does the same thing with the appellee’s brief.

So Now Briefs Can Be Too Short?

Posted in Briefs

Businessman hitting the books

A heretofore unquestioned rule of appellate advocacy: Less is better. The rule takes many forms–anything that doesn’t help, hurts; we call them “briefs” for a reason; sit down and shut up–but the basic idea is that we have panels of very busy, very smart judges handling appeals. Let’s be respectful of their time and get to the point. Also, every time we keep talking, or add a seventh assignment of error, or re-engage on rebuttal, we materially increase the chance that we’ll say something stupid and torpedo our appeal. This is very nearly one of the unalterable rules of the appellate universe.

But as it turns out, the rule has its limits.

A few days ago, Judge Posner uncorked a blistering opinion in Central States, Southeast and Southwest Areas Health & Welfare Fund v. Lewis, Case No. 13-2214. Here’s the relevant part of the opinion, which discusses the appellants’ brief.

So we come to the merits. The defendants’ appeal brief is a gaunt, pathetic document (there is no reply brief). Minus formal matter, it is only eight and a half pages long. Brevity is the soul of wit, and all that, but still: the first seven and a half pages are simply a recitation of the history of the Georgia lawsuit, the settlement negotiations, and the present suit, along with questionable and irrelevant facts; and the tiny argument section of the brief—118 words, including citations—states merely, without detail or elaboration, that the defendants do not possess the settlement funds and therefore can’t restore them.

A “gaunt, pathetic document”? This is literally the first time that I have ever heard an appellate judge complain that a brief was too short.

Writing nerd that I am, I had to take a look at the offending work product. And it really is a remarkable little thing. Judge Posner’s description of the brief is dead-on, if a little sharp. The summary of argument is four lines long–which is to say, one line longer than the only subject heading in the argument section. And in its entirety, that argument section runs to a whopping nine-and-a-half lines. Judge Posner expends more words making fun of the brief than the appellants spent arguing their case.

On the other hand, the brief is set in visually pleasing font from the century family. Butterick would approve.

The upshot here is two-fold: First, Judge Posner is still brilliant, funny, and mean. My man crush on him remains justified. And second, the point of writing a brief is to help the court. Sure, anything that doesn’t help, hurts–but you have to actually give the court something helpful to work with in the first place.

Oral Argument Prep–The Games We Play

Posted in Oral Argument

I have a pretty idiosyncratic approach to preparing for oral argument, which is full of ideas that I’ve borrowed from people over the years. And also the stuff that I’ve downright plagiarized from David Frederick.Girl and little boy playing chess isolated over white background

We’ve talked about some of these ideas, like argument blocks and various outlines, in the past.

One of the final steps in my preparation is a series of games that I play after I’ve outlined my argument, drawn up my argument blocks, and sketched my answers to tough questions.

These games test how well I’ve prepared, and they’re also kind of fun:

  • What’s your support for that, counsel? This is a favorite. When I’m rehearsing an argument or answer, I’ll stop myself at a random spot and pretend that a judge or justice has just asked me some variation of “What’s your support for that, counsel?”–for example, “Where can we find that in the record?” or “Have we ever said that in a case before?” If I can’t answer from memory or find the answer immediately in my podium binder, I lose the game. This helps me test whether my chronology, argument blocks, and argument outline are sufficiently detailed, and also whether I’m mentally prepared. What’s more, these questions come up in real life. I got one from Justice Mims yesterday. (The answer was JA 79.)
  • What’s the worst that could happen? I try to come up with a pithy formulation of the parade of horribles that would ensue if the court adopted my opponent’s rule. You never know when that could come in handy. 75-word limit, and extra points for gruesome verbs like “gut,” “eviscerate,” or “emasculate.” I’ve never been able to us the last one with a straight face, and the first two are a little hackneyed–but when you only have 15 minutes to make a point, the occasional cliche can be helpful.
  • How would you explain this to a seven-year-old? Self explanatory. If I can’t explain the case to Caroline, then I don’t understand it and probably won’t be able to argue it very effectively. Concerns that she will age out of the contest are unfounded, as Jack and Cricket wait eagerly in the wings.
  • If I were a judge, what would bother me about this argument? This is the flip side of “What’s the worst that could happen?” Appellate judges always have one eye on the next case, so it’s useful to put yourself in their shoes: Listen to your own argument and try figure out what wouldn’t sit well with a judge crafting a precedential opinion. Extra points for creativity–will your FLSA argument cripple the family farm, which has always been the backbone of American society? Appellate judges are endlessly creative.
  • Moot court. I find some version of a moot court to be absolutely essential. Depending on the needs of a particular case, my moots range in formality from getting some smart people together at the same table to discuss a case to hiring a real live appellate judge to sit on our panel. There’s just no way that I’m smart enough to do this stuff on my own.

 If I can win these games, then I can at least convince myself that I’m ready for the argument.

I Am Richard Posner . . . and So Can You?

Posted in Writing

The Daily Beast is running a Q&A with Richard Posner called “How I Write.”

Judge Posner is a brilliant and prolific writer. As a person who writes for a living, I was naturally intrigued. Also, I picked up the link from U of R Professor Kevin Walsh‘s Twitter feed (@kevincwalsh). Professor Walsh has a habit of sharing fascinating arcana, like the story behind the terrifying hat that Justice Scalia wore to the inauguration.

Unfortunately, except for one incredible line, the Posner article is a bit of a let down. Here’s the line:

Well, I don’t like the Supreme Court. I don’t think it’s a real court. I think of it as basically…it’s like a House of Lords.

Hilarious. Also, Judge Posner writes about 90 opinions a year and considers the average SCOTUS justice’s workload to be “ridiculous.” But aside from those zingers, there’s not much substance for practitioners (and in fairness, practicing lawyers likely were not the article’s target audience).

Even so, here is the titular explanation of how Posner writes: “I don’t really have any routines. Well, if I’m at home or in the office I have a desk and a computer. And I write.”

Not super helpful. Judge Posner is brilliant and prolific because he’s brilliant and prolific. Got it.

I am neither, but I write for a living and somehow manage to churn out enough marginally competent work product to keep the lights on (this blog excepted).

Here’s how I write briefs:*

  1. Review. I review the record (on appeal) or the pertinent facts (in the trial court) to get up to speed. 
  2. Brainstorm. I brainstorm potential appeal points and arguments, writing all of them down in a mind map/whirly-bird outline. Sometimes it’s color coded. I find that worrying too much about the law at this point will limit my creativity. For now, it’s just facts and equity and trying to generate as many ideas as possible. If I come up with a factually compelling argument for a fair result, I will most likely be able to find a legal framework to support it.
  3. Research. Now that I have all of these great ideas about what the trial court might have done wrong, I do some legal research to see which (if any) have merit.
  4. Brainstorm Some More. More brainstorming now that I know the law. Also, at this stage I start formulating specific arguments . . .
  5. Review/Research Again.  . . . and then I inevitably have to learn more facts and law to test my new arguments.
  6. Outline. Taking my color-coded absurdity of a mind map, which has now been highlighted and overwritten beyond legibility, I draft a very careful, full-sentence outline of my brief. This step is tough. I try to draw connections from all of the various strands of my brainstorming, drop the stuff that doesn’t work, and present the stuff that does work in the clearest, shortest way possible.
  7. Write. This is the fun part. It goes by very quickly once I’ve outlined, and I try to do it all in one sitting. I use Dragon NaturallySpeaking 11.0 with a silly headset  to dictate my brief directly onto a screen. The software is amazing and fast. I look utterly ridiculous, but it works. I guess this is the “writing” part.
  8. Edit. This is by far the hardest step, and the key to good writing. I think that Stephen King said that a good writer can cut half the words from his first draft. I’m not quite at that level, but I do cut loads of material from my first drafts–so much that I actually create an “Outtakes” document to store it, just in case it might be useful later. But here’s the real challenge with this part of the process: the stuff that’s the most fun to write–the clever turns of phrase, the biting comeback–is often the least useful to the Court, which just wants to learn what it needs to know to get to a legally correct result. The Court is not interested in how clever you are, or what a fine young writer you have become. It just wants results.

See? Talent is overrated. Sure, I may not be brilliant like Judge Posner, and following this routine will certainly keep me from ever being as prolific, but even a chump like me can learn to write

* Again, to be excruciatingly clear: This is how I write briefs. Blog posts I basically vomit into the internet with minimal thought or editing. They’re lucky if they get a spell check.

What to Bring to Oral Argument

Posted in Oral Argument

I’ve been helping a few friends prep for their first oral arguments recently. It’s been a mutually beneficial exercise, because (1) it has forced me to think about what I do to prepare and why I do it, and (2) it reassured them that, if I can do this stuff, then anyone can.

Looking back on those conversations, though, I realized that I’d forgotten to give my friends one of the most useful pieces of information: What they should actually bring with them to the argument.

You see, if you argue enough appeals, you will eventually suffer every conceivable embarrassment and deprivation at the lectern. And you will learn from those experiences. As a result, I’ve come to stock my argument briefcase like a disaster-preparedness kit. Here’s what it usually contains:

  • Argument Binder, with various outlines, modules, summaries, and questions
  • Joint Appendix
  • Briefs
  • 3 pens–one blue, one black, and one red. I like to take notes in different colors, and you never know when one of the pens will run dry or explode.
  • Two notepads: One to record the court’s questions and the Other Guy’s answers, and one to make notes for my own argument.
  • Key statutes, cases, and rules
  • If I’m in the Fourth Circuit, a binder with my notes on the judges (because there are a lot of them, and you don’t find out who will be on your panel before the day of argument).
  • Post-it notes
  • Hard candy
  • Band-Aids. Because one time at the Fourth Circuit I needed a Band-Aid and didn’t have any handy. (Pro tip: there’s a CVS across the street from the Fourth Circuit and convenient to the SCV.)
  • Advil. Because one time at the Fourth Circuit, I did something to a nerve in my neck the night before an argument and couldn’t turn my head to the right without excruciating pain. This required me to adopt some downright Karloffian body language when addressing the judge on my  right–a suboptimal persuasive technique, as his dissent proved. So, yeah. Advil.
  • Chapstick. Because one time at the Fourth Circuit . . .
  • Glasses. I use contacts in real life, but too much can go wrong on the day of argument. I’d probably swallow one while shaving and spend the whole argument squinting at the panel in  monocular distress. Plus, I gain 10 IQ points and 5 years of gravitas when I wear glasses. So I go with them, and if you’ve read this far you’ve gotten the sense that I wouldn’t risk bringing just one pair. They might be stolen by beavers on the way to court.

So that’s what I bring to court. I could certainly get by with less, but why risk it? This helps me sleep at night. And lest you think I’m some kind of OCD outlier, David Frederick has a handy checklist in Supreme Court and Appellate Advocacy that includes most of these items–and some others as well.

One question for my fellow appellate practitioners: Is there anything important that I left out?