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

Ross Guberman of Legal Writing Pro has a fun piece, Five Ways to Write Like John Roberts, that's worth checking out. In the essay, Guberman distills five writing lessons from Roberts's brief in Alaska v. EPA. Those lessons are:

1. Let your facts "show, not tell."
2. Add speed through short and varied transitions.
3. Add elegance and clarity through parallel constructions.
4. Add interest through short sentences, examples, and figures of speech.
5. End with a bang.

Sure, you've heard it all before. But Guberman's vivid discussion and well-chosen examples bring these points to life. And frankly, the quotation from Roberts's statement of the case alone makes the essay worth reading.

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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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You won't see it cited too often, but Rule 5:6 is without a doubt one of the most revolting recent developments in Virginia appellate practice. It's the Supreme Court rule that says, "Except by leave of Court, all pleadings and briefs, including footnotes, must be in at least 14 point type, [and] must use Courier, Arial, or Verdana font...."

The resulting product is visually abhorrent. A brief in 14-point Arial looks kind of like what my daughter might put together with her markers--the major difference being that paper is not Caroline's medium of choice.

It's difficult to understand the logic behind Rule 5:6. If shorter briefs are the goal, then it seems like the right move would be to limit length, like Federal Rule of Appellate Procedure 32(a)(7)--not to mess with fonts. If the rule is aimed at legibility, on the other hand, it could have required 14-point type, but given lawyers their choice of fonts. I'm far from sold on the readability of the sans serif fonts, and Courier is garbage. Also, it's worth asking why, if the Century fonts are good enough for the SCOTUS...

Anyway, Rule 5:6 is on my mind today because I've been working on a Fourth Circuit brief. One of the relative pleasures of practicing in the Fourth Circuit, as opposed to the Supreme Court of Virginia, is the opportunity to make reasonable design choices and put together a more professional-looking piece of work.

Not that I'm any sort of an expert. But there are plenty of resources available for lawyers looking to learn about basic typography for briefs and filings. One of my favorites is this guide, which is available on the Seventh Circuit's website. It convinced me to stop using Times New Roman. (Times New Roman was originally designed to allow the reader to skim quickly over words. That's not what you're looking for in a brief--you want the reader to linger.)

The Seventh Circuit also offers this law review article. It's long, but there's some good stuff in there. Finally, Bryan Garner offers some characteristically good advice in The Winning Brief. Some of his tips for designing text:

• Put a little more white space above a heading than below it;
• Use a 13-point serifed typeface (14-point in federal court);
• Set tabs at the equivalent of 5 characters for the first inch, .15 inches after that;
• Set margins at 1.2 inches on the side, and 1 inch on the top and bottom;
• Leave the right margin ragged (not justified) for greater readability; and
• Avoid all-caps text, which is basically impossible to read.

And this brings us full circle. I was at one of Garner's CLEs last summer, and I mentioned Rule 5:6 to him. He looked at me like--well, see the above photo.

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