De Novo: A Virginia Appellate Law Blog : Virginia Appellate Lawyer & Attorney : James O'Keeffe : Gentry Locke Rakes & Moore Law Firm : VA Court of Appeals Commentary & Analysis

Happy families are all alike; every unhappy family is unhappy in its own way. Leo Tolstoy I wrote that. With briefs, it's the opposite: Good briefs are unique, but miserable ones have an awful lot in common. My job has given me the opportunity to read (and, unfortunately, write) more than my share of bad briefs. Through careful study, I've distilled a list of 10 foolproof ways to turn a good brief bad:

1. Take shortcuts. Here's how you write a brief: brainstorm, research, brainstorm, outline, draft, revise, cite check. Skipping any of these steps to save time will backfire. If you don't outline, it will take you twice as long to write, and your brief will likely be poorly structured and repetitive. If you don't brainstorm, then you may miss a key point. If you don't cite-check, you will be embarrassed sooner or later. And if you don't research or revise, then may God have mercy on your soul.
2. Keep the court in suspense. On brief and in argument, get straight to the point. Your audience should understand the crux of your argument within 60 seconds. Don't keep the court in suspense by backing into things with an atmospheric statement of the case. Remember: Michael Bay, not Alfred Hitchcock.
3. Argue too many issues. There should not be more than 3 assignments of error/questions presented/major issues in any appellate brief. Aim for the jugular and let the rest go--a cheerful holiday thought from Justice Holmes, one of the cuddliest jurists to grace the bench. If you're not going to win on your strongest points, then you will certainly lose on your weaker ones. Some lawyers have told me that there is no harm in throwing in another argument or appeal point to see if it sticks. That's wrong. Judges have limited time to devote to your case, and you have few words in which to convince them. Excess argument dilutes your brief and erodes your credibility. As Justice Scalia likes to say, anything that doesn't help, hurts.
4. Ignore the other side's best arguments. The point of writing a brief is to help the judge arrive at the correct conclusion (i.e., the one you're advocating). You cannot do that without addressing the other side's best arguments. Those arguments will come out eventually, and the judge will have to grapple with them. Give her the tools to do so. Ignoring the other side's best points suggests that (i) you cannot rebut them or (ii) you were not clever enough to see them coming. Neither is an impression that you want to create. The only thing worse than ignoring the other side's best arguments is caricaturing them.
5. Call the other side names. Okay, so I might have brought this up once or twice in the past. Let the pony do his trick. Judges are trying to arrive at the legally correct result in a given case. That rarely has anything to do with opposing counsel, no matter how desperate, disingenuous, obfuscatory, or prevaricose he or she may be. (If prevaricose isn't a word, it should be.)

More after the jump . . .

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William & Mary alum and Supreme Court Justice Lee Millette put in a star turn this afternoon at the Roanoke Bar Association's monthly meeting. In fairness, he had some pretty strong material to work with, having presided over the trials of John Wayne Bobbitt and John Allen Muhammad, among others, before joining the high court.

In addition to war stories, Justice Millette shared some insight about the inner workings of the Supreme Court:

• It's All Cyclical. The Court's year operates cyclically, with each cycle keyed to the week during which the Court hears oral argument. For example, the Supreme Court will hear oral argument next week. In preparation, the individual justices received "big bankers boxes full of" the briefs and the appendices for those cases in July. In August, an individual justice was randomly assigned responsibility for each case. Next week, the Court will hear argument in those cases each morning. In the afternoon, the justices will meet to decide the cases. They will literally sit around a table and address the cases serially, with each having an opportunity to offer an opinion as to how each case should be decided and, more specifically, how the opinion should be written. (In this regard, the Supreme Court differs from the Court of Appeals.) Having reached its decisions, the Court will draft and circulate opinions for comment; the justice assigned responsibility for a case typically will author the opinion. The Court will then will then issue final opinions on the Friday of the following session--in this case, November 6.
• Oral Argument Counts. Justice Millette indicated that something less than 80-90% of cases are decided on the basis of the briefs, although he did not give an exact figure. This suggests that oral argument matters in at least 1 out of 4 cases. When I spoke to him after the speech, he reiterated that he is a strong believer in oral argument.
• Answer the Questions. In that vein, Justice Millette stressed that, when a lawyer is asked a question at oral argument, he or she must answer it. This is true even if the Court is asking for a concession. If it does not receive a responsive answer, the Court will return to the issue. 
• A Bit of Comfort. Justice Millette explained that--perhaps in contrast to certain other appellate courts--the Supreme Court of Virginia does not set out to embarrass lawyers, and generally will not pick on a lawyer who is having a rough argument. He cited one case last year in which Justice Koontz cautioned his colleagues against picking on a lawyer who was clearly having a bad day. But if lawyers are to be treated respectfully, they need to return the favor. The Supreme Court is a formal court, and its justices are not to be referred to as "you guys," called by the wrong names, etc.
• Clarity is Key. With respect to briefs, Justice Millette referred to Chief Justice Roberts' recent comments at the Fourth Circuit Judicial Conference. He stressed the need for clarity in briefing. He cautioned that length does not necessarily translate into clarity.
• And Length Counts. Justice Millette noted that, when he picks up a brief, he flips to the last page to check its length. As another justice once pointed out, "Page limits are not goals."

Look for write up from Virginia Lawyer's Weekly in the near future--I sat at a table with Peter Vieth, and he seemed to be taking pretty good notes.

Update: You can link to the VLW Blog piece here.
 

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