De Novo: A Virginia Appellate Law Blog

De Novo: A Virginia Appellate Law Blog

Jay O’Keeffe practices with Johnson, Rosen & O’Keeffe LLC. in Roanoke, Virginia, where he splits his time between appellate and business litigation. read more

Legal Writing: Be Brief or Be Thorough?

Posted in Briefs, Writing

I don’t usually get surprised at legal-writing CLEs. But I got surprised this morning.

For context, I was lucky enough to moderate a panel  at the VADA’s annual meeting this morning. Justice McCullough, Judge Carson, and Erin Ashwell sat on the panel, which addressed practical legal-writing tips. If you know these folks, then you know that they have varied and fascinating life experiences. We ignored them. Instead of talking about, say, growing up in Marseille (Justice McCullough) or spending summers in the Catskills as a California kid (Judge Carson) or writing novels (Erin), we focused on my idiosyncratic tics and obsessions. You’re welcome, VADA!

Even so, the panel came off well.

Our leadoff question was aimed at Justice McCullough: What makes a brief helpful to a judge?

I was pretty sure that I was going to get something like brevity/clarity/easy access to controlling facts and authority. If you read enough books on legal writing, that theme will be beaten into your skull. Aim for half the page limit, if your best argument doesn’t win your weaker points will surely fail, etc.

But that’s not what Justice McCullough said at all. His response was legitimately surprising.

Justice McCullough said that he wants a brief to be thorough, well-researched, and organized. That’s it. He was very clear that he would take a thorough brief over a tight brief any day of the week. That’s what makes his life easier. So if you have controlling case law, give it to him. If you have persuasive case law, give it to him. If you have a secondary source, give it to him. If you have useful context for the legal question at issue, give it to him.

To be fair, Justice McCullough acknowledged that a trial judge might have a different answer. (Judge Carson did!) And he noted Chief Justice Roberts’ quip, “I have yet to put down a brief and say, ‘I wish that had been longer.’” Yet he stuck by his guns: To be helpful to the Supreme Court of Virginia, a brief should be thorough. A trial judge might not be able to read 500 pages about whether a medical record should be admitted into evidence. But an appellate court has to craft a written opinion that will guide the next 20 cases. And cases come to SCOTUS with tons of briefing. There’s little chance of an important issue being under-researched. At SCOVA, by contrast, that is a real risk.


A New Sheriff in Town?

Posted in Uncategorized

Juli Porto has an article in this morning’s VTLAppeal, Is There a New Sheriff in Town Named “A.H. Tingler”?, analyzing SCOVA’s subtle importation of Twiqbal through A.H. v. Church of God in Christ, Inc. and Tingler v. Graystone Homes, Inc. Thoughtful and recommended. Among other things, Juli notes that the Court cited Twiqbal in A.H., then cited A.H. in Tingler as if it had always been Virginia law. She points out:

At the same time, it seems odd that with a plethora of Virginia caselaw on the topic, the Justices decided to overlook this cornucopia and instead invite two controversial federal cases into the fold. It also seems odd that the Court repeatedly decides to unnecessarily change fundamental and decades-old passages. When the Court makes these slight changes, it rightly introduces the authority for its broader proposition with the introductory signal “see.” This signal indicates that a cited authority “clearly supports” the proposition it cites, but it also indicates that “an inferential step” is necessary to get there. One “inferential step” is one thing. But continually stacking them can lead to an outcome that the game of “Telephone” often does: A statement very different from the original. And that’s why it matters. With A.H. Tingler, the Court may have signaled its willingness to continue to make incremental changes in Virginia’s pleading standard that will slowly but steadily bring us closer to the federal standard.

I think that she’s right. I also think that the Court recently used similar moves to rewrite develop the law of products liability (Duncan –> Walters –> Evans) and vicarious liability (Parker –> Our Lady of Peace). It looked like it was headed toward importing Daubert, too, until it was brushed back by the General Assembly. [Edit: A reader points out that I should have added gross negligence to this list.]

Quick Report From a Pair of Telephone Oral Arguments at SCOVA

Posted in Oral Argument

I had my first two two telephone oral arguments in the Supreme Court of Virginia this morning. Merits arguments at that. They were weird! How so? Glad you asked:

Process. The Court scheduled six arguments this morning starting at 9:00–three before the recess, and three after. The Clerk’s office asked the lawyers arguing the first three cases to call in at 8:45 and the lawyers arguing the fourth through sixth cases to call in at 11:00. My cases were set to start at 11:15, so I called in with the second group. The Clerk, Doug Robelen, gave us a briefing and confirmed that our audio sounded okay. He asked the lawyers who weren’t participating in an argument to mute their phones. My arguments started at 11:15 and 11:45. Before each argument, Doug took a roll call to confirm that all the participating justices and lawyers were online. Since we did not have a timer or a podium traffic light, Chief Justice Lemons performed basic time keeping duties.

Setup. I called in using a headset and my VOIP system. The idea there was to get some freedom of movement without the audio issues that speakerphones entail. If I’d used a speakerphone, I would have taken Willy Jay’s advice and spread a towel over my table to reduce paper-shuffling noise. Unlike you BigLaw types, I do not have my own personal lectern, so a very formal banker’s box had to suffice:

(If you think this is shabby, I won’t tell you about my oral argument hoodie.) I kept my computer at another desk with my softphone on mute when I wasn’t arguing. I used my watch’s stopwatch function to time the argument. I don’t use the stopwatch app on my iPhone because the phone goes to sleep halfway through an argument. I’m sure that there’s an easy fix but finding it would cut into my bike time.

Takeaways. Here are some observations, in no particular order:

  • Great Job by the Clerk. First things first: The Clerk’s office did a fantastic job getting this thing up and running under trying circumstances. Overall, it worked beautifully. Huge compliments to Doug, Muriel Pitney, and everyone else involved.
  • Defense Against the Dark Arts. One of my arguments apparently had some feedback issues that didn’t seem to be coming from my end (because I’m told that they weren’t present during the soundcheck or my other argument). Not a big deal. The Court’s IT staff thought that it might be the result of another participant leaving his phone unmuted. That has some potential for mischief, no? If a lawyer can disrupt an argument by putting opposing counsel on speaker and forgetting to hit mute, then we need to police phone etiquette pretty zealously. We might also consider having a separate line for each argument. (To be 1,000% clear, I AM NOT SAYING THAT THIS IS WHAT HAPPENED TO ME. I don’t know what happened. I haven’t even listened to the audio yet. And I certainly don’t mean to imply that any of the lawyers in my cases did anything intentionally; I like the lawyers in my cases and I know that they’d never do that. I’m just suggesting that if this kind of interference is even a possibility, we should be mindful of it going forward. Or try Zoom. ;-))
  • Pacing. It is about 10x easier to handle argument stress when you can pace around your office while the Other Guy is talking. You can physically work off the tension and nerves while keeping your energy up. Big plus.
  • No Body Language or Eye Contact. This was really challenging for me. I speak quickly and wind myself up as I go. In person, I rely heavily on eye contact and body language to know when to shut up and let somebody ask a question. Without that input, I tried to slow down and take more time after my points, but I am not sure that I succeeded. At all.
  • No Routine. I am a creature of habit and routine. I have a definite routine for arguments in Richmond–same hotel, same meals, same bedtime, etc. All of that went out the window. I tried to make up for it by crafting a pretty comfortable setup in my office but it was still disconcerting.
  • Fewer Questions. The Court asked fewer questions than usual. (Or I didn’t give them enough room to jump in?)

So what’s the verdict? I was wrong: Telephone oral argument wasn’t as awkward as I’d feared. I hadn’t considered how comfortable it would be to work from my own office.

Live arguments are still better, though.

Oral Argument During the Pandemic

Posted in Oral Argument

Longtime readers know that I’m a huge fan of oral argument. Giving counsel a chance to address the Court’s questions before the decision conference strikes me as vital.

But for obvious reasons, recent events have complicated courts’ efforts to hold argument.

It’s been fun to follow the workarounds that they’ve applied. A few basic strategies emerge:

  • Postpone oral argument. SCOTUS and SCOTX took this approach. Appealing in its simplicity.
  • Hold oral argument by videoconference. The Ninth Circuit the North Dakota Supreme Court are doing this. I have to admit: It’s fun to see some of the justices all robed up at home. But I’ve got just enough experience trying to teach a law school class by Zoom to get a headache looking at this screenshot:

To be clear, this post is not the result of any kind of systematic study. I just pay attention to this stuff on Twitter. I’d love to hear how other courts are handling this.

All this naturally prompts a follow-up: Which option is the best way to go?

I’m an oral argument purist. I think the discussion is invaluable and I doubt that it can be adequately replicated by teleconference or videoconference. So if I were running things, I would follow the lead of SCOTUS and SCOTX and postpone arguments. Second choice would be videoconference.

After that, I’m honestly not sure if I’d rather argue a case to seven justices over the phone or just have it decided on the briefs.

Update 4/2/2020

The Twitterati tell me that CA7 is holding telephonic oral arguments, and that the Minnesota Supreme Court is holding virtual oral arguments. I appreciated this post:

I also appreciated the generous feedback that Justice Thissen gave the participating lawyers a few hours later.

And finally, CA4 announced on April 1 that it was postponing its May 5-8 oral argument session. The court explained that “[c]ases tentatively calendared for May 5-8, 2020, will be continued for argument at a later session, scheduled for argument by video-conference or teleconference, or submitted on the briefs, at the direction of the panels in each case.”

Practical Legal Writing from the VTLA Annual Convention

Posted in Uncategorized

Chief Justice Lemons likes to say that an advocate develops three oral arguments in each case: the one they planned to give, the one they actually gave, and the one they wish they’d given.

Last Friday, I was honored to speak at the VTLA Annual Convention. My topic was practical legal writing. Below is the speech that I planned to give. Two caveats: First, this is not the speech that I actually gave (let alone the speech that I wish I’d given); the actual speech was more of a structured improvisation and was, uh . . . way better? At least more lively and profane. The text below is just what I used to plan my slide deck. Second, the presentation was accompanied by a written outline with loads of citations. I tried to give credit where credit was due in the outline but couldn’t cite all the sources orally in real time because that would be the most tedious presentation ever. I’m not claiming original ownership of the ideas below.

Anyway, here you go:

Thanks, and good morning. I’m grateful to be here for all the usual reasons, but especially because I get to talk about my favorite part of our job: Writing. As lawyers, we get to be professional writers. We are paid to write. That’s a dream come true for some of us. And it only gets better, because people have to read our stuff, even if they’d prefer not to. The judge has to read our briefs; our clients have to read our memos; opposing counsel has to read our letters. We’re blessed with a captive audience. That makes us some of the luckiest people—and even some of the luckiest writers—on the planet.

But those blessings come at a cost, because we as lawyers face pressures and obstacles that other writers never have to consider. It’s not just the timing and economic pressures of a law practice—although that’s a big part of it, and something that we’ll talk about today. Those pressures are compounded by a challenge unknown to the writing profession at large: On every single project, on every single case, there is always some asshole on the other side trying to make us fail. Trying to make sure that our words are discounted or misunderstood. Other writers have to cope with the demons in their heads—fear, self-doubt, procrastination, perfectionism, all the forms of self-sabotage that stop them from doing their work. And to be sure, we have to deal with those, too. But we get the added bonus of opposing counsel.

Add it up, and you’ve got a welter of factors working against us, and keeping us from delivering the type of top-notch, professional writing that our clients deserve. So for the next 30 minutes, I want to talk about practical strategies to help us get the work done. And to get it done right, at the level our clients need. So I’m going to focus three ideas: Preparation, Process, and Product.

Let’s start at the beginning, with preparation. What’s the apocryphal Lincoln quote? “Give me six hours to chop down a tree and I will spend the first four sharpening the axe.” In our preparation phase, we’re sharpening the axe. We do that first by reading good writing. That doesn’t have to be legal writing. In fact, it probably shouldn’t be legal writing. If you’re looking for a good composition, you’re better off reading The New Yorker, or The Atlantic, or anything by Michael Lewis, Malcolm Gladwell, or John McPhee. These authors are mechanically excellent. They know how to tell a story, frame an argument, and engage an opposing position. They use structure to develop themes. And their prose sings. That’s because they’ve mastered rhythm, word choice, sentence structure, and variation. You can’t learn this stuff by reading law review articles.

But there’s more to it. These folks learned the secret of what makes writing interesting: precise, concrete examples. Malcolm Gladwell says that you see this when you talk to an interesting person about a subject they care about. So borrowing from Gladwell, Trey Smith is interesting, and he loves Aretha Franklin. But he doesn’t just say, “I like Aretha.” He’ll talk about a specific progression in a specific song that she recorded in Muscle Shoals in 1967 that he first heard in 1987 and where he was when he heard it and how it changed his life. That’s interesting. And the trick isn’t limited to popular nonfiction. Who here has read John Roberts’s brief in Alaska v. EPA? Consensus pick for the best brief ever written? What do you remember about that brief? The Irish Setter in the airplane. That detail had nothing to do with the brief’s merits, but everything to do with its themes. It set the brief apart from the hundreds of others that the Court and its clerks read.

One last thought about reading: When you read this stuff, read it critically—the way an NFL quarterback watches game film. Think about the choices the writer made. Try to figure out why she made them. Run them back in your head and play out what would have happened if she’d made different choices. Hunter S. Thompson retyped passages from Fitzgerald and Hemingway to see what it felt like to write like them. He typed up The Great Gatsby more than once, in its entirety. That’s professional.

A second thought about preparation: Know the rules—grammar, civil procedure, local rules, standing orders, rules of court. There’s no easier way to lose credibility than by making a small, dumb mistake. If your audience can’t trust you with the small stuff, why should they trust you with the big stuff? They shouldn’t. And if you get the little stuff wrong, people are guaranteed to catch you. Almost no one will notice if you misconstrue an obscure case about the First Amendment rights of protestors, even though it’s a substantive mistake. But absolutely everyone will notice if you leave the “l” out of “public forum.” Even though it’s a nonsubstantive error, it will erode their trust. The little mistakes will kill you.

That brings us to our second major point: Process. Every good process starts with the end in mind. So at the outset, we identify our document’s goals. We ask some basic questions

  • Who is our reader?
  • Do we want to persuade or inform?
  • How much do they already know?
  • How much more do they want to know?

And consider the messages and themes that we want to convey

  • Do we want to present the case as easy or hard?
  • Novel or routine?
  • Fact-bound or law-driven?

The answers to these questions will color every choice that we make, from structure to typography.

And I’m serious about that. Let’s say we have a case that’s really strong on the law, but maybe with some unsympathetic facts. We want our argument to feel logical. Inevitable. Like math. And maybe we want our brief to feel as much like the Restatement or a treatise as possible. So we’ll pick a font like Century Schoolbook. We’ll use heavy boldface type for emphasis—just like the “black letter law” that shows up in the Restatement. We’ll use lots of syllogisms. Structurally, our brief will focus on the law. We’ll adopt a dry, detached tone.

Or consider the opposite scenario: We have a case with sympathetic facts that will require an expansion of the law. What now? Well, if our strength is our client’s story, we want our brief to feel like a story—like something a judge might find on her iBooks or Kindle. Maybe we pick an airy font like Palatino. Maybe we adopt a more conversational tone. Structurally, our brief will be weighted toward the narrative. We might even adopt a non-chronological structure, like a novel, to emphasize themes or particularly compelling facts.

But just identifying goals doesn’t get us from a blank white screen to a 50-page brief. To do that, it helps to have a system. Indulge me for a minute. If you watch sports, you’re probably sick to death of hearing people say “trust the process,” right? It’s tired, it’s faddish, it’s cliché. But there’s a kernel of truth in there. Think about a seven-pass sequence in a soccer game. You’re looking at between 10 and 20 touches on the ball. Each touch requires every one of the 22 players on the field to make a decision, and each of those decisions requires every else on the field to make decisions. So you have a geometric progression. In 10 seconds. And a soccer game isn’t measured in seconds; it’s 90 minutes long. Teams play dozens of games over the course of a season. No player or coach can manage all that information. It would paralyze them. They focus instead on offensive and defensive systems—principles of play and rehearsed, choreographed movements—that reduce the cognitive strain. After all, there’s no sense making 100 decisions when 1 will do. And implementing systems lets each player focus only on his immediate task—this touch, this pass, this shot—without having to account for the 21 other players on the field.

Same thing with writing. Getting from a blank page to a 50-page brief is a huge cognitive lift. Just picking the first word is a big deal. I mean, there are something like a million words in the English language? How do we know which one to use? It’s tough. So we follow a process break it down into manageable chunks. How we do it in practice can and should be idiosyncratic. But if we’re going to be maximally efficient, we need to both isolate and make room for each stage of the writing process because we don’t have the bandwith to do everything at once. Imposing a system reduces decision fatigue, fights writer’s block, and it gives us more space to be creative.

Bryan Garner has a handy mnemonic for this: Madman, Architect, Carpenter, Judge. Each character represents a phase of the writing process.

The Madman phase is wild, nonjudgmental brainstorming. Try to think of all possible approaches to your writing task. Write them down, by hand, on a notepad or dry-erase board. Do some legal research, and then brainstorm some more. The Madman thinks of hard questions, even if he can’t answer them. The Madman’s work product is a bunch of notes. His goal is to be very sloppy and very productive.

The next phase is the Architect. She works from the Madman’s notes. She spots connections and imposes structure. She takes the madman’s ideas and produces a linear, full-sentence outline.

The Architect then hands things off to the Carpenter. He does the actual writing—which should be easy, because the Madman and the Architect have already done all the hard work. The Carpenter is basically filling in the blanks from the Architect’s outline. He is writing quickly, without editing along the way. He can leave out precise case citations and quotations with a note to fill them in later.

Finally, the Carpenter lets his draft sit for a day or two, then turns things over to the Judge. The Judge is our internal editor. Most lawyers have a highly overactive Judge. If we let her run free, she will stifle the writing process. She will look over the Madman’s shoulder and say, “This is garbage.” That will hurt the Madman’s feelings. He will shut down, and we will be less creative. And you know what? The Judge is right. The Madman’s stuff is garbage. It’s supposed to be garbage It’s not supposed to be good yet. That’s how writing works. You can’t compare your first draft to, say, Steven King’s published work. Stephen King can’t compare his first draft to Stephen King’s published work.

So we need to keep the Judge in a box until it’s time for her to do her thing. And when it’s time, we just give her the keys and let her roll all.

This raises another interesting question: How do we edit? My natural tendency is to sit down and start marking up a draft—line edits, proofreading, big thoughts—correcting every mistake that I see. I mark it up and run and the changes. Print out the document and mark it up again. Lather, rinse, repeat. The editing process expands to fill all available time between completion of my first draft and delivery of my final document.

That is a deeply stupid way of doing things. It’s infinitely long, it’s impossible to plan, and it is hugely demanding because it requires me to do a million things at once.

Here’s a better way I’ve found to do it: Break the editing process up into a series of passes over the document. Each pass has a specific objective. I do it right, once, and then I’m done and I never think about it again. So depending on how large the project is and how much time I can devote, I can do a number of passes, reviewing at increasingly granular levels. But I’ll probably want to make at least 3 passes: a big-picture pass, a structure and coherence pass, and a line-edit pass.

And we can simplify those line edits even further because sentences are like apples: They’re all about chunks and cores. “Chunks” are bite-sized pieces of information. I have a 10-year old who loves Legos. He builds all sorts of cool Star Wars ships and buildings. And when he does that, his Lego blocks are the irreducible unit of construction. We can break his project down, but not any further than the individual Lego.

That’s how chunks work in writing. They’re the irreducible, idea-level unit. You can’t break things down any further. And the trick to editing sentences is managing your chunks. We can do this a number of ways:

  • Dividing longer sentences into shorter segments.
  • Organizing those segments to reflect the order of our thinking.
  • Placing important information in its own sentence or, failing that, at a more chunkworthy place in the sentence. After all, a standalone sentence is more important—and gives an idea more emphasis—than an independent clause, which is in turn more important than a dependent clause, which is more important than a prepositional phrase, which is more important than a modifying phrase. You get the idea.
  • Putting old information before new information.
  • Presenting your argument before the bad guy’s rebuttal.

And sentences, like apples, also have cores: a subject, a verb, and an object. So when we edit, we think about those cores. We try to put the subject, verb, and object close together. We try to put the core of the sentence’s content in its grammatical core. We try to put the sentence’s most important action into its verb. And when it doubt, we put the core near the start of the sentence because it’s just easier to read that way.

When I talk about process, lawyers tell me: These steps are nice in theory, but I don’t have time for them. My clients can’t afford them. I need to get paid.

I disagree. These are the essential steps of the writing process. Trying to cut one out makes all the rest harder. So they take longer, and your brief isn’t as good. And let’s be very clear: I am not saying that you need to spend 5 days on each phase of this process. If you only have a few hours to crank out a brief, fine. That’s all you’ve got. But use it intentionally. Spend part of it brainstorming, part of it outlining, part of it writing, and a lot of it editing. That’s PROCESS.

I want to shift gears now, and spend a little time speaking about the final PRODUCT, and what makes for effective legal writing. And in doing so, I want to touch on three concepts:

  • Providing focus before detail;
  • Avoiding unnecessary suffering; and
  • Developing a sense of style.

Let’s start with focus before detail. Emory professor Timothy Terrell argues that most technical writing—including legal writing—fails at the macro level because it delivers too much information without offering any context or structure. His basic analogy is that if the information in a writer’s head is a liquid, too many writers just dump that information onto their readers, without giving them a container to collect it. Professor Terrell stresses the need for “meta-information” in legal texts–signposting, structural cues, and the like. The trick to good technical writing, in his view, is to make complicated information seem straightforward and accessible.

One of his mantras is focus before detail: Help your reader understand what we’re discussing before going in for a deep dive. We do that in the introduction—before we get to anything else—by making the reader smart, attentive, and comfortable.

First, we make the reader smart. Before digging in, we forecast the information that we’re about to provide. We do this in three ways.

We label: We tell the reader what the document is about, so she can put it in context. For example, “This is a breach of contract case that turns on a single issue: Whether the trial court erred by admitting parol evidence of blah blah blah . . . .”

We map, previewing the document’s structure. For example, “Summary judgment is appropriate for three reasons. First, blah blah blah . . . .”

And we point: We let the reader know what she should be looking for as she makes her way through the document.

But in addition to making our reader smart, we want her to be attentive. To keep her focused, we’re very clear about the bottom line: We tell her precisely what’s at stake. Our powerful, syllogistic reasoning compels a favorable result. But we want to make sure that the reader understands, from the start, why that result is important. So we connect it to her circumstances. For example, “If the Court upholds this sanction, it will effectively eliminate blah blah blah . . . .”

To keep the reader attentive, we also want to be efficient. We want to show her that we will not waste her time. So we’re not repetitive or verbose. We don’t present irrelevant information.

Finally, we want to keep our reader comfortable. And we use two techniques to do that. First, we use plain English and a classic prose style—as opposed to, say, shrieking italics and bitter ad-hominem attacks—to put her at ease.

Second, we’ll appeal to ethos. We’ll show why the result we seek is just and fair, so the judge feels better about ruling in our favor.

And that’s focus before detail.

Our next rule is do not inflict unnecessary pain on your reader. Seems fair enough. What are some things that inflict pain? One obvious culprit is repetition and verbosity. All lawyers know that we often face express page limits. But we often have to navigate more subtle—and more important—limits on the length of our work. That’s because as lawyers, we’re generally writing for readers who are

  • Very smart,
  • Very busy, and
  • Already behind on a ton of reading.

As a result, they have extremely limited time, energy, and patience. We squander those resources at our peril. At best, adding words dilutes the force of our writing. At worst, it leads to unnecessary mistakes. This all goes back to Justice Scalia’s golden rule, which is the very first thing in our outline: Whatever doesn’t help hurts.

What else inflicts pain? Anything included to show how smart you are, or how hard you’ve worked—string cites, superfluous citations, clever wordplay. You don’t get points for that. Intelligence and hard work are assumed as the price of admission. Cut the showboating.

You know what else causes unnecessary suffering? Block quotations. It’s bad enough when you find yourself in the hands of a writer who doesn’t appreciate white space, and who writes paragraphs that go on for pages and pages that go on for days. But it gets even worse when she starts using block quotes: The text gets single-spaced and indented, the font gets smaller, and everything runs together. Block quotes are an abomination. But sometimes you do need to work with the controlling text. When that happens, I’ve got three tricks to help.

First, you can tell the Court what the block quotation says in your own words in your lead-in. That way, even if they skim or skip the quotation, they’ll get the point.

Second, you can break the quotation up into forty-nine-word chunks. Quote the first one. Then say, “The Court went on . . . “ and quote the second chunk. Continue until you have used all the words. This will trick the judge into reading the whole quotation.

Third, if you are quoting from a document that has been produced in the case—maybe a contract or email—you can use the Snip Tool to capture the relevant text. Create a table in your brief with two vertical cells. Past the text into one of the cells. Use the drawing tools to highlight or mark it up as you see fit. Use the other cell to label it “Figure 1.” The table and the pretty colors will trick the judge into reading your quotation. They will also make your brief look professional.

What else is sure to give your reader a headache? Snark, meta-analysis, and personal attacks. Look: If we’re writing a brief, we are trying to help the judge, not hurt our opponent. The judge is just trying to get to the right answer. She doesn’t care if opposing counsel is Mother Theresa or Michael Avenatti. She just cares about the strength of their arguments. So she certainly won’t be impressed when, for example, you call out the irony of your adversary’s position. Irony is a literary device, like metonymy, synecdoche, or alliteration. A legal brief is not a literary critique.

And those cheap shots can backfire for at least two reasons. First, anything that your reader perceives as a personal attack on your opponent will cost you credibility. Professionals attack ideas, not colleagues. Second, the judge is just trying to get to the right result. It’s in your interest to assure her that your friend across the courtroom has presented the opposing argument in its strongest possible form. Because if she doubts opposing counsel’s work product, the judge will assign a  clerk to do his job for him. That’s bad for us. The clerk is probably at least as smart as opposing counsel. She’s less experienced, sure, but she’s got way more time on her hands and much more credibility with the judge. We want to avoid this scenario at all costs. So we play nice.

And that brings us to our last tip: cultivate a sense of style. Stylish writing captures the reader’s attention and lures them into your argument. Of course, we can’t all be Hemingway. Otherwise there’d be no excuse for compelling Friday morning CLEs about legal writing. But we can fake it. The outline has tips courtesy of Mark Hermann. Here are the big ones.

  • Write in short sentences. If the sentence runs for more than 3.5 lines, break it in half. Make it two sentences.
  • Write in short paragraphs. Two or three to a page, and make sure that they have topic sentences.
  • Start sentences with little words and familiar concepts, and build momentum as you move into longer words and harder concepts.

That’s all I’ve got. I love to talk about this stuff, and would be glad to meet you at the coffee station if you want to continue the conversation.

Dead Man Walking

Posted in Appellate Practice, Preservation of Error, Writing

The brief in opposition is one of the great underappreciated joys of Virginia appellate practice. It comes at the writ stage, when we’re just trying to convince the Supreme Court that it should/should not grant a petition for appeal. We’re not necessarily arguing the merits. Sometimes, the petitioner will not yet have hired specialist appellate counsel. Even when they do, some nominal appellate lawyers fail to appreciate this distinction.

So how do we dissuade the Court from granting an appeal? Well, you have the usual arguments:

  • This is a fact-bound case.
  • This is an idiosyncratic issue that is unlikely to recur.
  • There’s no split below, nor any indication that the bench and bar need guidance on this issue.
  • This case is a poor vehicle for reaching an issue that may interest the Court.

That last one is key. Virginia has a robust procedural default jurisprudence. Trial counsel tend to be aware of this in principle, but they get a little hazy on the specifics. The specifics are all that matter here.

Off the top of my head, I’ve regurgitated a totally underinclusive list of 20 waiver/forfeiture/procedural default traps to look for at the writ stage. Any one of them can kill an appeal point:

  1. Failing to preserve a point by contemporaneously objecting with reasonable specificity. Rule 5:25.
  2. Objecting “just for the record” and not requesting a ruling under Nusbaum v. Berlin, 273 Va. 385 (2007).
  3. Objecting to evidence but introducing evidence of the same character in your case-in-chief. Drinkard-Nuckols v. Smith, 269 Va. 93 (2005).
  4. Failing to get a ruling on an objection.
  5. Failing to ensure that the record contains everything necessary to let the Court evaluate and resolve the assignment of error. Rule 5:11(a).
  6. Failing to proffer excluded evidence. Graham v. Cook, 278 Va. 233 (2009).
  7. Confusing objections to the admissibility of the evidence and the sufficiency of the evidence. See Bitar v. Rahman, 272 Va. 130 (2006).
  8. Failing to move for a mistrial at the close of all the evidence.
  9. Attempting to “renew” a motion to strike at the close of all the evidence instead of raising a new one (when the distinction matters).
  10. Agreeing (or failing to object) to a jury instruction that kills your theory.
  11. Relying on a naked case citation or a rejected jury instruction to preserve an argument not explicitly raised at trial.
  12. Objecting to a closing argument but not simultaneously asking for a curative instruction or a mistrial.
  13. Approbating and reprobating–that is, taking inconsistent position in successive phases of litigation.
  14. Law of the case.
  15. Inviting error.
  16. Right result/other reason.
  17. Failing to assign error to an independent basis for affirmance. Manchester Oaks Homeowners’ Ass’n v. Batt, 284 Va. 409 (2012).
  18. Assigning error to a ruling that the trial court never made. Martin v. Lahti, 295 Va. 77 (2018).
  19. “Bad brief” error–failing to argue an assignment of error as required by Rule 5:17, stashing an underdeveloped argument in a footnote, etc.
  20. Harmless error under Code § 8.01-678.

One of the wits on #appellatetwitter called an appellant boldly pushing a forfeited theory “dead man walking.” That seems about right.

And one last point, just to be clear: As a policy matter, I disagree with the emphasis that the Supreme Court placed on procedural defaults from, say, 2000-2015. I think it’s bad and wrong. I would much prefer that the Court address substantive issues. But we go to war with army we have

The Hardest Problem at Oral Argument

Posted in Oral Argument

Raffi Melkonian, an appellate lawyer from Texas and the dean of #appellatetwitter, has been working on what he considers the hardest problem at oral argument: the judge who has misunderstood something and is angry about it.

It’s a great thread. I Twittered some half-baked thoughts at Raffi, but this problem merits a more thorough take.

First, in an appellate oral argument, you have very limited time. An angry judge will burn it up. At best, the exchange will be a stalemate. But it’s much more likely to play out badly–think somewhere between “affirmatively counterproductive” and “total disaster.” So you must disengage as soon as possible. This problem will not solve itself.

Your method of disengagement will vary based on the nature of the confusion, but here are a few moves:

  • If the confusion is factual: “Your Honor, JA 759 clarifies this point.” An angry judge will usually flip or scroll to JA 759. That breaks break the rhythm and creates a pause, letting you can finish your thought. Even if the target judge doesn’t flip, one of his colleagues probably (on a 3-judge panel) or surely (en banc) will. If you’re right, they may help you disengage.
  • If the confusion has to do with a legal theory: “I’m sorry, Your Honor, this point wasn’t clear from the briefing. We’re not arguing that BigCorp couldn’t reasonably rely on the bring-down certificate as a matter of law. We’re pointing out that, on this Record . . .”
  • If you need a complete reset: “I apologize, Your Honor, I wasn’t clear. Our point is that . . .”

The key takeaway here is that some phrases will usually defuse an angry judge and get the Court’s attention: “JA ___,” “this point wasn’t clear from the briefing,” and “I apologize.” That’s because judges want to get the right answer. They don’t want to be confused or made to look foolish by misreading an argument or missing a record cite. And they don’t particularly want to make you look foolish either (although they will if they have to).

Moot courts are a great time to identify confusing points about your argument and practice these escapes.

Second, don’t abuse this move. Always keep in mind your goals for the argument. They’ll usually include (1) advancing your client’s theory, (2) addressing the Court’s questions, (3) clarifying lingering confusion from the briefs, and (4) building credibility with judges and clerks. Using a reset to shut down a productive line of inquiry undermines each goal. It also gobbles up time. Disengage and reset only when the line of questioning is clearly counterproductive–that is, when a justice is both confused and angry, and continuing the conversation on her terms will hurt your argument.

Third, be mindful of the culture of your court. The Supreme Court of Virginia and the Court of Appeals of Virginia are gracious to the point of being courtly. You will rarely need to shut down a line of questioning in one of those courts. As a matter of tradition and culture, the justices/judges will let you explain yourself. They will rarely get visibly angry. (If they do, you’ve got a bigger problem than a blog post can solve.)

The Fourth Circuit, on the other hand, tends to be more rough and tumble. Expect a questioning at a higher velocity and, um . . . emotional intensity? Bring some moves.

Mind-Bending Intergalactic Writing Tips

Posted in Writing

Confession time: I have a strong prejudice against the default writing style at most BigLaw firms. I’d like to think that my intolerance is mostly justified, but I recognize that it’s at least partly unfair.

To understand why, remember that I started my career at a BigLaw firm. I had a great experience working with talented lawyers on exciting cases. But I faced one major hiccup along the way. Early in my tenure, I was assigned to a project with some corporate-governance types. We had to analyze a potential securities-fraud issue for some client or another. The project was staffed in typical BigLaw style: partner, senior counsel, counsel, senior associate, and me.

As the babiest of the baby lawyers, I won the honor of taking the first cut at the memo summarizing our analysis of the issue. This meant that I had come up with our analysis of the issue. Never mind that I didn’t know the first thing about securities fraud.

In my memory, at least, this was a heavy lift, which resulted in hefty, detailed memo–maybe 35 pages, single spaced. I did a ton of research and worked through the weekend to finish it early. The senior associate helped out. She loved the draft. We passed it along to the counsel. Let’s call him “Sid.” (I’ve changed names and, in some cases, genders to protect the innocent.)

Sid hated my memo. He wouldn’t even redline it; he said that it was hopeless and told me to start over.

So I did. I pulled an all nighter and delivered a new document at about 6 a.m. the next morning. I worked insanely hard on that thing.

If Sid hated version 1, he absolutely loathed version 2. He called me into his office and  told me that he had real concerns about my writing. It wasn’t just subpar for a first-year associate; it was totally, hopelessly unacceptable at a Firm of Our Stature. Sid suggested that I pursue remedial writing instruction. In the meantime, he was going to give me one more chance. If I couldn’t deliver a minimally acceptable product by the morning, he would get a more capable lawyer involved.

This time, at least, Sid did me the courtesy of marking up my introduction. As I recall, my sentences were too short; I did not use enough romanettes; and I deployed too many verbs.

Also, through three rounds of “edits,” I had yet to receive a substantive suggestion about the analysis. That’s possibly because nobody on the bottom rungs of the case team knew anything about securities fraud, either.

Another revision. Another all nighter. Another 6 a.m. delivery. I took Sid’s comments to heart. I wrote sentences that went on for paragraphs, and paragraphs that went on for days.

Yet version 3 was, somehow, even worse. Sid pulled in a senior associate, the senior associate wrote some argle-barle that had almost nothing to do with the facts of the case–he cut-and-pasted whole sections from a law-review note–and I was cast off to remedial legal-writing land.* The memo wound up costing more than most people make in a year. It was trash. The relationship partner never sent it to the client. Sid still has the same role at the same firm, lo these many years later. And I’m doing blog posts about legal writing.

So that’s where I’m coming from.

Now, you may have noticed that some BigLaw work product recently made the news. The DC District Court slammed some fancy BigLaw lawyers representing Concord Management and Consulting for writing ludicrously over-the-top briefs. In a public hearing, District Judge Dabney Friedrich reportedly said “I found your filings, in particular your reply brief filed Friday, unprofessional, inappropriate and ineffective.” News reports noted that the suspect briefs quoted Looney Toons and a profane (if slightly sanitized) quip from Animal House. Judge Friederich “made it clear that she was not amused by what she called the ‘clever quotes.’ She also chastised” counsel for “ad hominem” attacks on opposing counsel. She said that the quotations were “undermining [counsel’s] credibility in this courthouse. I’ll say it plain and simple: Knock it off.”

Now, to be clear, this wasn’t my BigLaw firm. But it was a BigLaw firm, so my schadenfraude kicked in. And so did my curiosity; I couldn’t believe that some of the quotations from the briefs were accurate.

But they are. They’re real, and they’re spectacular.

I pulled two of the briefs from PACER. I read them. And I have thoughts!

First, people have different philosophies about writing briefs. My goal in writing a brief is to advance my client’s cause by providing helpful information to the court (and its clerks) in a useful package. Secondary to that, I want to build credibility with the court and opposing counsel.

Second, if I write a brief that makes me feel smart or funny, or that says mean things about the other side, I am almost guaranteed to alienate my readers. That’s counterproductive, as it undermines these goals.

Third, the only people in the world who can make legal writing funny are

  • Elena Kagan
  • Mark Hermann
  • Elie Mystal
  • Don Willett
  • The Guy from Popehat
  • Drew Magary (probably?)

That’s it. When I feel like writing something clever, I check to see if I am one of these people. Usually I’m not.

Fourth, if all else fails, at the very least I want to minimize unnecessary and work (and suffering) for my reader.

So with that in mind, let’s have some fun with some snippets:

This intro rocks. I was wondering if we were going to call the Defendant “Defendant” or not. Sometimes I like to call the defendant “Gertrude,” just to mix things up.

Also, when you have a catchy title like “DEFENDANT CONCORD MANAGEMENT AND CONSULTING LLC’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL DISCOVERY FROM THE UNITED STATES,” it’s best to repeat that title in the first sentence of your brief. Verbatim, if possible. That grabs the reader’s attention. They love to read extra words that don’t convey additional information.

If you’re going to use an expletive from Animal House, own it and type out the work “fuck.” Also, why are we using an expletive from Animal House? The quotation isn’t an argument. It doesn’t add to the argument. It’s not inherently funny, and it feels forced because it doesn’t neatly fit the facts presented in the memo. You could save the reader some time by just writing “Special Counsel, BOO!”

Or use the GIF of Belushi with the mashed potatoes.

Does this sentence even have a subject? I got tired and had to stop reading. I do appreciate the double-indent on the first line, though. That communicates authority.

So, “the Court” is actually the person that we’re addressing. If I were the Court, I might find this sentence . . . whiny? Accusatory? That’s not how we make friends.

And on to the next brief:

Another whiz-bang introduction. Like Hamlet, Moby Dick, and 67% of the Great Works in the Western Canon, Concord opens with the phrase “pursuant to.” This reels the reader in.

Also, “To summarize: WRONG ANSWER.” is an arrogant and off-putting way to summarize your position. We’re trying to help the Court get to the right answer. Picking on opposing counsel doesn’t move that ball forward.

Intergalactic, planetary, planetary, whiplash fashion . . .

So, here’s the thing about jokes: If you have to explain them, they’re not jokes. You can make the Tweety Bird reference. Everyone over 35 will get it (which maybe excludes clerks, which maybe suggests that it’s not the awesomest pop-culture reference to drop into a brief. But I digress.)

But if you have to drop a footnote explaining  Tweety’s catchphrase, your reference stops being funny. You haven’t fully Gorsuched it, I guess, but it’s still mostly dead. (See what I did there? With the reference?)

This is . . . a conclusion? It wouldn’t hurt to restate the relief sought. I think the second sentence is supposed to explain why that relief is appropriate. Yet there are many words and ideas in that sentence. Some of them might grow up and get their own sentence some day. Just a thought.


*We quickly diagnosed the main problem with my writing, which was Sid.

Live Blogging the VBA Appellate Summit

Posted in Uncategorized

As I’m writing this, I’m attending the VBA’s Appellate Summit, a fantastic CLE that comes around every three years. This year, the appellate council made asked me to moderate a 50-minute panel about brief writing. They won’t make that mistake again! Thankfully, the outstanding–dare I say heroic?–contributions of panelists Judge Robert Humphreys, Don Jeffrey, and Elbert Lin saved the session from disaster (nothing could save it from my dad jokes). It turns out that a panel that good can moderate itself.

The day’s leadoff session was a real highlight, featuring an insightful discussion among Official Friend of De Novo (TM) Stuart Raphael, Chief Judge Roger Gregory of the Fourth Circuit, and Chief Judge Glen Huff of the Court of Appeals of Virginia. Here are some takeaways:

  • Chief Judge Huff appreciates a detailed table of contents. He does not appreciate hyperlinks in a table of contents. Chief Judge Huff reads cases and annotates cases in pdf, and hyperlinks complicate that process.
  • Chief Judge Gregory is funny! He had a great way of suggesting that lawyers home in on key points: “When you’re on your way to victory, don’t throw stones at every barking dog. You’ll get them on the way back home.”
  • Chief Judge Huff is not looking to be wowed when he reads a brief. He just wants concise, simple statements without spin.
  • Chief Judge Gregory, who writes plays in his spare time, is looking to be wowed. For him, the wow factor comes from story. He compared oral argument to a party, and he said that writing a brief is “writing to be invited to the party.”
  • Judges on the Fourth Circuit typically don’t discuss cases before oral argument.

Stuart closed with a great question: What do the Chief Judges know now that they wish they’d known when they were practitioners? Both pointed to the outcome-dispositive force of the standard of review.

And back to the CLE . . .

In Which the Author Goes Hunting and Very Nearly Catches a Woozle

Posted in Uncategorized

Over the weekend, Official Friend of De Novo(TM) Ross Guberman posted a challenge on Twitter: Who could come up with a fresh way to convey the idea that opposing counsel is on a fishing expedition?

This tweet yielded some fun responses, like “Plaintiff is on a snipe hunt” and “Plaintiff is running crab traps in a frog pond.”

Let me add my humble suggestion: “Plaintiff has very nearly caught a woozle.”

When I tweeted this line, I got some live feedback suggesting that it was too obscure. Wrong. Anyone who finds this obscure has no soul. Just consider what happens when we drop the line Gorsuch style:

Plaintiff has very nearly caught a woozle. That is to say, his own herculean efforts in discovery have convinced him of the rightness of his theory despite all evidence to the contrary. In A.A. Milne’s 1926 classic Winnie the Pooh, Pooh and Piglet track some footsteps through the snow around a spinney of trees. They suspect that they may be tracking a mythical beastie known as a “woozle.” As the hunters continue around the spinney, the number of tracks increase. They surmise that the woozles are gathering may have been joined by a wizzle. They also begin to wonder if their prey may have hostile intent, and Piglet grows worried enough to abandon the search. Just then they spot Pooh’s friend, Christopher Robin, sitting a tree. Christopher Robin points out that Pooh and Piglet have been walking in circles around the trees. Pooh belatedly realizes what has been going on: He and Piglet were just following their own tracks. “I have been Foolish and Deluded,” said he, “and I am a Bear of No Brain at All.” Indeed, no less an authority than Wikipedia recognizes “[t]he Woozle effect, also known as evidence by citation, or a woozle, [which] occurs when frequent citation of previous publications that lack evidence misleads individuals, groups, and the public into thinking or believing there is evidence, and nonfacts become urban myths and factoids.” So too here, the Plaintiff’s own spirited pursuit itself–not any underlying facts–has satisfied him of the truth of his position, blinding him to the obvious countervailing proof.

“Woozle hunt” is a 100% valid alternative to “fishing expedition.” Fight me.