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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.