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Effective Brief Writing
7.1 Introduction ...................................................................................... 281 7.2 Good Brief Writing Starts With Good Writing ................................ 283 7.3 The Goal of Brief Writing ................................................................. 286 7.4 The Brief Writer as Translator .......................................................... 286 7.5 The Brief Writer as Story Teller ........................................................ 291 7.6 Organizing the Brief .......................................................................... 296 7.7 Maximizing Credibility ..................................................................... 297 7.8 Making the Brief Readable ............................................................... 301 7.9 Visual Impact of the Brief ................................................................. 310 7.10 The Great Footnote Debate ............................................................. 311 7.11 A Final Cautionary Note .................................................................. 312
7.1 Introduction
Every lawyer who ever has to make a written submission to a court— which is to say every litigator—owes it to his or her client to be as effective a brief writer as possible. Good brief writing can win a case, and bad brief writ- ing can lose one. This is what the Chief Justice of the United States has to say on the topic:
We depend heavily on the lawyers. Our chances of getting a case right improve to the extent the lawyers do a better job and when you see something like bad writing, the first thing you think is, well, if he didn’t have enough time to spend writing it well, how much time did he spend researching it? How much time did he spend thinking out the ramifications of his position? You don’t have a lot of confidence in the substance if the writing is bad. 1
(^1) Interview by Bryan A. Garner with John G. Roberts, Chief Justice of the United States, Washing- ton, D.C. (2006–2007), available at http://www.lawprose.org/supreme_court.php.
Federal Appellate Practice
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What are the hallmarks of a good brief? Justice Kennedy has the answer to that: “It must be lucid, cogent, succinct, interesting, informative, convinc- ing.” 2 We will touch on all of these criteria throughout this chapter. But first let us share some general thoughts about the brief writing experience. It is often said that brief writing is more art than science. We would go further and say that it is all art and no science. Indeed, in describing our work as brief writers to nonlawyers, we often compare it to that of a sculptor, who starts with a lump of clay and continuously kneads it, prods it, and shapes it until eventually it becomes—we hope—a thing of beauty that conveys some- thing powerful to the viewer. A brief can and should do the same thing: It should convey the viewpoint of the authors (and their client) in a forceful way that is most likely to persuade its intended audience—the judge or judges who will be deciding the case. Like sculpting, brief writing is part inspiration and part hard work. Some lawyers are natural brief writers. They have an instinctive sense of how to convey a point, how to organize their arguments, and how to engage a reader. Other lawyers become successful brief writers by exposing themselves to the good writing of accomplished brief writers, reading what expert brief writers have to say on the subject, and, most importantly, holding themselves to a high standard of excellence whenever they have a brief to write. One eminent teacher of brief writing, Bryan A. Garner, has suggested that Maslow’s four-stage analysis of skill development applies fully to the art of brief writing. 3 Maslow’s four stages are (1) unconscious incompetence; (2) conscious incompetence; (3) conscious competence; and (4) unconscious competence. The terms pretty much suggest their meaning. Lawyers in the first phase think that they are perfectly fine brief writers, when in fact they are rotten ones. As Garner puts it: “These writers are clueless about their own cluelessness.” 4 Garner believes that a majority of lawyers are in this first category. Lawyers in the second phase are poor brief writers and know it. “As you might suspect, relatively few legal writers are in this category because they either repress their awareness * * * or work to remedy their deficien- cies.” 5 The third stage is for lawyers who have made the effort to become strong brief writers and are on their way to accomplishing that objective. As Garner puts it: “These are the ones who trouble themselves to find out what respected authorities say about writing. They don’t leave readily answerable [stylistic and syntactical] questions unanswered.” 6 The fourth category is com- prised of lawyers who “have integrated their years of learning so thoroughly into their writing that their accumulated knowledge is like muscle memory.” 7
(^2) Interview by Bryan A. Garner with Anthony M. Kennedy, Associate Justice, United States Su- preme Court, Washington, D.C. (2006–2007), available at http://www.lawprose.org/supreme_court.php. (^3) Bryan A. Garner, Legal Writing: Great Lawyers Seek the Highest Level of Writing Competence , S TU - DENT L AW ., Mar. 2004, at 10. (^4) Id. (^5) Id. (^6) Id. at 11. (^7) Id.
282 Federal Appellate Practice Ch. 7.
We regularly see briefs that contain whopping grammatical errors. For example, in a case in which we recently were asked to take over the appeal, the briefs in the trial court repeatedly used the invalid conjunction “neither
- or” instead of “neither * * * nor.” Of course, no one would suggest that the outcome of the case turned on that, but there is a good likelihood that this glaring error caused the district court to start thinking about the lack of basic grammar training in modern secondary education instead of the argu- ments the party was trying to make. Another example involves the increas- ingly pervasive “wrongly suppressed that .” 10 This error involves dropping the word “that” from sentences in what can only be assumed to be an effort to sound more conversational. Doing so often creates ambiguities, distracting the reader from the point being made. Here is an example of this error from a recent Supreme Court brief: “the addressee-signature provisions require delivery retailers to ensure over-the-doorstep delivery is to the purchaser * * *.” The omitted “that” injects ambiguity into the sentence, causing at least some readers to believe that the retailers are ensuring the delivery rather than that they are ensuring that the package is delivered to the purchaser. A third error worth mentioning is misplacement of the adverb “only” within a sentence, so that it is far removed from the word or phrase it is supposed to limit. This clumsy writing leaves the reader in doubt about the intended object of the limitation. As one expert on style observes, “only is perhaps the most frequently misplaced of all English words.” 11 Moreover, this is not simply a matter of grammatical correctness. “The more words separat- ing only from its correct position, the more awkward the sentence” and the greater the likelihood of ambiguities in meaning. 12 Again, the point is not that dropping “that” from sentences or misplacing “only” will cause a judge to rule against you, but rather that it could distract the judge and cause her to lose the thread of your argument. Another common flaw in brief writing is the use of the “run on” sentence, a sentence with several clauses. Different clauses begin with signals such as “and,” “or,” “but,” “however,” “because,” “since,” “although,” and the like. Lawyers tend to be smart. They can think about several thoughts in sequence, even if not simultaneously. They also appreciate nuance and qualification. That is why it is possible to build several different thoughts into a single sentence by using several clauses. The problem comes when a busy reader—such as a fed- eral appellate judge—is skimming a brief that contains lengthy sentences packed with several distinct thoughts. It is hard enough to convey a single important thought to a busy reader. The odds of getting a point across effectively decline dramatically when the brief writer tries to force too many thoughts into a single sentence. No later than the editing process, chop those sentences into intel- lectually bite-sized morsels, so that the busy reader can absorb and digest each
284 Federal Appellate Practice Ch. 7.
(^10) B RYAN A. G ARNER , A D ICTIONARY OF M ODERN A MERICAN U SAGE 649 (1998). (^11) Id. at 469. (^12) Id.
distinct thought before sampling the next one. Any sentence that runs more than four lines should raise a caution flag. Then there is the overuse of the “passive voice,” where the subject of the sentence is being acted upon rather than doing the acting. This construc- tion either is ambiguous or requires additional words to clarify the action. It also is generally a less forceful way of conveying a point. (They call it “pas- sive” for a reason.) Compare “Jones was misled by Apex’s misrepresentation that its product could cure the common cold” with “Apex misled Jones by representing that its product could cure the common cold.” Fortunately, for those who are “consciously incompetent” in this area (as well as those who are “consciously competent”), there are many useful and well-written guides to good, contemporary American writing style. The Court of Appeals for the Eleventh Circuit mails a copy of Strunk and White’s The Elements of Style to newly admitted attorneys. For half a century, the Strunk and White book has been the most user-friendly and compact guide to basic rules of good and proper writing. We also have found Bryan Garner’s A Dic- tionary of Modern American Usage to be an invaluable resource. Find several writing-style books that you like and read them cover to cover; then keep them on hand for reference. Your colleagues are another important source of knowledge. When you have the opportunity to have your work edited by more senior writers, pay very close attention to the changes they make. This is an opportunity to raise your consciousness about what you are doing right and what you may be doing wrong. The importance of taking the time to improve your overall writing skills cannot be overstated. As Chief Justice Roberts recently explained during an interview conducted by legal writing guru Bryan Garner, bad writing can lose a case:
Because [the judges] may not see your strong case. It’s not like judges know what the answer is. I mean we’ve got to find it out. * * * And so, when you say can bad writing lose a strong case, if it’s bad writing, we may not see that you’ve got a strong case. It’s not that this is poorly written so you’re going to lose. It’s so poorly written that we don’t see how strong the precedents in your favor really are because you haven’t conveyed them in a succinct way, or we don’t see exactly how the statutory language works together to support you because you haven’t adequately explained that. 13 Justice Alito agrees that bad brief writing can lose a case “because you may totally fail to convey the point that you want to make to the court,” while good brief writing can win a marginal case because “[a] marginal case by definition is one where you are pretty close, and good writing may per- suade the judge that an argument should be accepted.” 14
(^13) Interview by Bryan A. Garner with John G. Roberts, Chief Justice of the United States, Washing- ton, D.C. (2006–2007), available at http://www.lawprose.org/supreme_court.php. (^14) Interview by Bryan A. Garner with Samuel A. Alito, Associate Justice, United States Supreme Court, Washington, D.C. (2006–2007), available at http://www.lawprose.org/supreme_court.php.
Ch. 7.2 Effective Brief Writing 285
One frequent method of confounding an appellate judge is the tech- nique of packing a sentence with arcane acronyms in a misguided effort to save space. Talking in code may be fun as a child’s game, but it does not satisfy the goal of communicating with the decision-maker on an appeal. The technique often characterizes the briefs of specialist lawyers who have im- mersed themselves in the facts of a particular case and in a specific area of law. They know what they are talking about, even if the judge is not in on the secret. Speaking for a panel of the Seventh Circuit, Judge Posner recently made this precise point. After noting that “[r]einsurance is a dauntingly complex, esoteric field of business and the briefs in this case are correspondingly com- plex and esoteric,” 16 Judge Posner went on to scold:
A note, finally, on advocacy in this court. The lawyers’ oral arguments were ex- cellent. But their briefs, although well written and professionally competent, were difficult for us judges to understand because of the density of the reinsurance jargon in them. There is nothing wrong with a specialized vocabulary—for use by spe- cialists. Federal district and circuit judges, however, with the partial exception of the judges of the court of appeals for the Federal Circuit (which is semi-special- ized), are generalists. We hear very few cases involving reinsurance, and cannot possibly achieve expertise in reinsurance practices except by the happenstance of having practiced in that area before becoming a judge, as none of us has. Law- yers should understand the judges’ limited knowledge of specialized fields and choose their vocabulary accordingly. Every esoteric term used by the reinsurance industry has a counterpart in ordinary English, as we hope this opinion has dem- onstrated. The able lawyers who briefed and argued this case could have saved us some work and presented their positions more effectively had they done the translations from reinsurancese into everyday English themselves. 17 Here is a too-good-to-be-true example of what not to do provided by Judge Kozinski:
LBE’s complaint more specifically alleges that NRB failed to make an appropriate determination of RPT and TIP conformity to SIP.^18 An effective brief will describe the law in a way that will be crystal clear to a reader who is sophisticated but lacks specific knowledge of the particular legal question that is being discussed. Effective brief writers take the same approach to the facts, boiling down complex matters to their essential core and explaining the relevant facts with precision and economy. Here is an example from a Mayer Brown brief written in a case involving a challenge to the Environmental Protection Agency’s decision not to require automobile manufacturers to include on-board refueling vapor recovery (ORVR) systems in their vehicles. Our clients were trade associations that had intervened in the D.C. Circuit to defend the EPA’s action. Our brief argued that Congress could not possibly have intended to force EPA to re- quire manufacturers to install ORVR systems notwithstanding the safety risks such systems entail. But to do that, we first needed to explain both the ORVR
Ch. 7.4 Effective Brief Writing 287
(^16) Indiana Lumbermens Mut. Ins. Co. v. Reinsurance Results, Inc., 513 F.3d 652, 653–54 (7th Cir. 2008). (^17) Id. at 658. (^18) Id. (italics supplied by Judge Kozinski).
technology and the alternative in a simple and understandable way. The fol- lowing is the relevant section from our brief (with citations removed to im- prove readability):
- The Problem of Refueling Vapors and the Two Alternative Means of Address- ing it. When automobiles are refueled, gasoline vapors may escape into the at- mosphere and contribute to ozone pollution. There are two alternative methods of reducing the amount of vapor that escapes during refueling. The first method, known as Stage II, relies upon a specially designed refu- eling nozzle to prevent the escape of vapors, which are then channeled into a storage tank on the service station premises. Stage II controls were first used in California in the mid-1970s and have since been implemented in numerous other locations throughout the country. During this time, the technology has evolved from a bulky rubber “boot” (still used at some locations in Washington, D.C.) to a lighter, more manageable model that looks and operates just like a conven- tional refueling nozzle. EPA’s research indicates that Stage II systems are as safe as conventional gasoline dispensing equipment and as effective as ORVR sys- tems in controlling refueling emissions. The second method of limiting the escape of refueling vapors, known as on-board, or ORVR, relies upon a device installed within the vehicle that cap- tures and stores the vapors and eventually channels them to the engine for use as fuel. The only ORVR technology projected to be available in the foreseeable future utilizes a large, inflexible canister (typically ranging in capacity from 4 to 10 liters) containing activated charcoal to store the vapors. In addition, these devices require a hose that runs from the vehicle’s fuel tank to the canister and a second hose that runs from the canister to the engine. The versions that have shown potential to achieve the necessary reduction in emissions also contain complicated mechanical nozzle seals and vapor control valves located near the top of the fuel filler pipe.
Note the effort made in this discussion to educate the court about the rel- evant technologies without becoming mired in unnecessary details or using a lot of technical jargon. Here is another example (with record citations deleted) from a Mayer Brown brief in a case involving complicated issues of banking law, complex facts, and numerous terms of art. Our co-counsel confided that few if any members of the court had any real familiarity with banking issues. Our task therefore was to try to present the complicated facts in a way that was selec- tive but accurate while also being understandable to generalist judges.
- AFMC’s account at CoreStates. AFMC maintained several demand ac- counts at CoreStates. The account at issue in this case, although denominated a “settlement account,” was a general deposit account, not a special or restricted one. Pursuant to a “zero balance account agreement” between CoreStates and AFMC, cash accumulated in any of AFMC’s accounts could be used to cover checks drawn on the other accounts. Nevertheless, over time, AFMC ran up a series of overdrafts in its accounts and became indebted to CoreStates for the amount of those overdrafts, totaling approximately $4.5 million.
- The Pioneer loans and purported security interest. RNG was a company that “originated” mortgages—i.e., loaned money to home buyers. It then sold the resulting notes and mortgages to investors. As a “warehouse lender,” Pioneer advanced money to RNG to fund loans that RNG made. In May 1997, Pioneer and RNG entered into a loan and security agreement governing the grant of a line of credit from Pioneer to RNG. The agreement gave Pioneer a security interest in the notes and mortgages obtained by RNG (the “Collateral”) and in any proceeds obtained therefrom.
288 Federal Appellate Practice Ch. 7.
not, however, forward the bailee letter (which would have contradicted its rep- resentations and warranties to Norwest that its title was unencumbered). With Pioneer’s approval, AFMC instructed Norwest to wire payment to an AFMC account at CoreStates. When Norwest completed its inspection of the notes and decided to proceed, it initiated a wire transfer in the amount of approximately $2.1 million to AFMC’s account at CoreStates. CoreStates received the transfer on November 4, 1997, credited it to the designated AFMC account, and noti- fied AFMC. Within a few hours, AFMC instructed CoreStates to wire the funds to Bank One for credit to Pioneer’s account there, which CoreStates did.
- The debit restraint on AFMC’s accounts. On November 7, 1997, a CoreStates branch manager, Louis Nelson, concluded that large overdrafts in AFMC’s ac- counts were the result of check kiting—i.e., manipulation of AFMC’s multiple accounts in a manner that allowed it improperly to draw on funds that it did not have. Accordingly, Nelson placed a debit restraint on—i.e., prohibited with- drawals from—all of the accounts of AFMC and its affiliates. Further investiga- tion revealed that AFMC and its affiliates owed CoreStates approximately $4. million as a result of the check kite.
- The second transaction: RNG to AFMC to Norwest. Meanwhile, Pioneer, RNG, and AFMC were arranging the sale of a second set of mortgage loans (the “Second Loan Portfolio”) to Norwest. The second transaction proceeded much as the first one had. Bank One, acting as RNG’s agent and in accordance with Pioneer’s instructions, endorsed the notes to AFMC and forwarded them to AFMC with a bailee letter. When AFMC conveyed the notes to Norwest, it again omitted the bailee letter. And again AFMC instructed Norwest to wire payment to AFMC’s account at CoreStates. Although the Superior Court was under the impression that Norwest had been instructed to wire payment for both loan portfolios to Pioneer’s account at Bank One, the evidence places it beyond dispute that AFMC—the seller and endorser of the notes, and the only party with the legal power to direct the payment—instructed Norwest in writ- ing in each instance to wire payment to AFMC’s account at CoreStates. Al- though Pioneer and RNG would have preferred to have the funds wired directly to Bank One, changing the routing instructions would have caused an unac- ceptable delay. They therefore agreed to employ the same routing instructions as had been used for the First Loan Portfolio. In accordance with those instruc- tions, Norwest wired the funds to AFMC’s account at CoreStates.
- CoreStates’ receipt of the wire transfer and retention of the proceeds as a partial offset against AFMC’s debt. The wire transfer covering the Second Loan Portfolio, in the amount of $1,454,699.80, reached CoreStates on November 12, 1997, and was duly credited to AFMC’s account. On November 13 and 19, CoreStates received two additional wire transfers, bringing the total of the three wires to $1,779,519.99. At the time of each wire, CoreStates had no notice that any party other than its depositor, AFMC, claimed or could claim any right in those funds. As a result of the debit restraint on its accounts, AFMC was un- able to forward the funds to Bank One, as planned. Meanwhile, on November 21, CoreStates retained Walter Weir, a promi- nent Philadelphia banking lawyer, to advise it in connection with AFMC’s over- drafts. On November 25, AFMC’s counsel wrote to Weir, asserting that the three wire transfers from Norwest to AFMC’s account at CoreStates should have been sent to Pioneer’s account at Bank One, and requesting “that all three wires be reversed to the account of Norwest Bank.” The letter attached a copy of the bailee letter from Pioneer to AFMC. On December 1, Pioneer’s counsel in California, Robert Izmirian, wrote a letter to Weir, again claiming that the transfers to CoreStates had been a “mistake” and asserting that “the funds should
- be immediately returned to Norwest pursuant to its demand.” Weir subse- quently obtained more information about the transaction from Izmirian and from personnel at Norwest and AFMC. On the basis of that information and his firm’s research of the pertinent Pennsylvania and federal law, Weir advised CoreStates that it had the right to retain the funds on the authority of (i) Section
290 Federal Appellate Practice Ch. 7.
4A-502 of the Pennsylvania UCC; (ii) Pennsylvania’s common law, pursuant to which a bank’s valid right of setoff has priority over a third party’s security in- terest; and (iii) Section 606 of the Pennsylvania Banking Code. CoreStates ac- cordingly declined to reverse the wire transfers. On December 18, 1997, CoreStates “swept” and closed AFMC’s accounts, making a corresponding en- try in its books. Note some of the techniques used in this excerpt. First, the authors break the facts into digestible pieces by using running headings. Second, when in- troducing a term of art (like “zero balance account agreement,” “warehouse lender,” or “check kiting”), the authors take care to explain that term simply and concisely rather than either assuming that the court already fully under- stands the term or providing an overly precise and complicated definition that only a law professor or specialist would care about. Third, the authors keep the jargon to a bare minimum. Although they do use terms that are central to the transactions and/or to the issues of statutory interpretation raised by the case, they have not made matters worse by adding still more jargon in an effort to impress the court with their expertise. To repeat our central theme, the brief writer’s job is to present the material in a way that is useful to the court and that ultimately will advance the goal of winning the case, not to show off personal knowledge or vocabulary.
7.5 The Brief Writer as Story Teller
We subscribe to the theory that many cases are won or lost in the state- ment of facts. What this means is that in many cases (perhaps most) the statement of facts is often the most important section in the brief. Chief Justice Roberts confirms that, as a reader of tens of thousands of pages of briefs each Term, he appreciates a statement of facts that tells a good story. In an interview conducted by Bryan Garner, the Chief Justice explains:
It’s got to be a good story. I mean every lawsuit is a story. I don’t care if it’s about a dry contract interpretation; you’ve got two people who want to accom- plish something and they’re coming together. That’s a story. And you’ve got to tell a good story. * * * [N]o matter how dry it is, something’s going on that got you to this point and you want it to be a little bit of a page-turner, to have some sense of drama, some building up to, you know, the legal arguments. * * * [C]ertainly here at the Supreme Court and in the courts of appeals you’re look- ing for a couple of hooks in the facts that hopefully are going to be repeated in one form or another later on in the legal argument, but also are going to catch somebody’s interest. It may not have that much to do with the substantive legal arguments, but you want to catch their eyes. 19 The law generally follows the facts. It is the version of the facts that the appellate court accepts that may control the selection and application of the governing legal principles, which generally are well settled. Where the legal principles may not be settled, judges as human beings are more likely to craft
Ch. 7.5 Effective Brief Writing 291
(^19) Interview by Bryan A. Garner with John G. Roberts, Chief Justice of the United States, Washing- ton, D.C. (2006–2007), available at http://www.lawprose.org/supreme_court.php.
In this case, a jury found that BMW’s 3% disclosure policy constituted fraud under Alabama common law. It then proceeded to award $4 million in punitive damages (later reduced by the Alabama Supreme Court to $2 million) to plaintiff Dr. Ira Gore, not just for BMW’s application of that policy to him but also for its application of the policy to hundreds of cars sold outside of Alabama—despite the absence of any showing that those sales were unlawful where they occurred.
- The BMW Quality Control Process. Bayerische Motoren Werke, A.G. (BMW AG) manufactures automobiles in Germany. BMW purchases newly manufactured vehicles from BMW AG, imports the cars into the United States, and prepares them for distribution and sale throughout the United States. Occasionally the finish of a vehicle suffers damage between the time the vehicle rolls off the assembly line in Germany and the time it arrives in the United States. The damage could be dents or scratches that occur during the trans-Atlantic voyage or it could be blemishes caused by environmental condi- tions, such as acid rain. When newly manufactured automobiles arrive in the United States, their first stop is one of BMW’s vehicle preparation centers (VPCs). The VPCs are staffed by technicians, who have been trained to factory standards, and are stocked with the same equipment found in BMW AG’s factories in Germany. At the VPCs, the vehicles are prepared for delivery to dealers and inspected for trans- portation damage as well as any other imperfections. If a vehicle has been damaged or is otherwise flawed, it is returned to fac- tory quality at the VPC (or, in some past instances not pertinent here, at the facility of an independent contractor under the supervision of BMW employ- ees). Refinishing takes place in a specially designed paint booth, in which the paint is applied and baked until hard. The paint booth provides constant air filtration and utilizes a down draft—a forceful air flow from ceiling to floor—to minimize the presence of dust in the painting area. The booth also contains controls for regulation of heat and humidity levels. The refinishing process—which is essentially identical to that used by BMW AG when it detects an imperfection in a car’s finish as it comes off the assembly line—involves numerous steps and quality-maximizing safeguards. First, all mold- ings and emblems are removed from the surface that is to be refinished. Then the entire vehicle is cleaned with silicone and dirt remover. Next the flaws in the surface of the paint (whether from acid rain or other causes) are removed by lightly sanding the affected surface with a wet sander—a sanding machine with a hose producing a steady stream of water to wash away dust. Then a technician performs additional light sanding by hand. The sanding process re- moves no more than the top coat of paint. It is not necessary to remove any of the protective coatings beneath the top coat. After sanding, the vehicle again is thoroughly cleaned and wiped off with silicone and dirt remover. Next, masking tape is placed around the surfaces that are to be refinished and the vehicle is put in the paint booth, where it is wiped a final time with silicone and dirt remover and blown dry with air pressure. Once the vehicle is in the paint booth and fully cleaned, the paint is applied to the affected surfaces and the booth is heated to a temperature adequate to harden the paint, but low enough to avoid damaging the other components of the ve- hicle. BMW does not merely repaint the spots that had sustained damage; in- stead, it repaints the entirety of any panel that has some damage or noticeable imperfection. After the paint has dried, the refinished vehicle is inspected to ensure proper gloss and texture and the absence of imperfections.
- BMW’s Disclosure Policy. During the period relevant to this case, BMW had a formal policy relating to vehicles that required refinishing or repairs upon arrival in the United States. If the cost of the repairs exceeded 3% of MSRP, the vehicle would be placed into company service and driven for up to six months or ten thousand miles. BMW then would sell it to a dealer at auction as a used vehicle, with whatever disclosures were required by applicable law.
Ch. 7.5 Effective Brief Writing 293
If the cost of VPC repairs performed on a vehicle did not exceed 3% of the vehicle’s MSRP, however, BMW considered the car to be new and sold it to a dealer without disclosure of the repairs. This policy was adopted in 1983 to satisfy the strictest of the various state statutes then in effect governing disclo- sure of repairs performed on vehicles sold to consumers as new.
- Dr. Gore’s Car. In January 1990, Ira Gore, a medical doctor specializing in oncology, purchased a 1990 BMW 535i from German Auto in Birmingham, Alabama, for $40,750.88. Dr. Gore drove his car for approximately nine months before taking it to Slick Finish, an independent automobile detailing shop. He was not dissatisfied with the car’s overall appearance; nor had he noticed any problems with, or flaws in, the car’s paint. He simply wanted to make the car look “snazzier than it normally would appear.” The proprietor of the detailing shop, Leonard Slick, informed Dr. Gore that his car had been repainted. It turned out that the automobile purchased by Dr. Gore had sustained superficial paint damage (presumed by the parties to have resulted from acid rain) and that the horizontal surfaces had been refinished at the VPC in Brunswick, Georgia. In keeping with its nationwide policy, BMW had not dis- closed the repairs to German Auto because the cost of those repairs—$601— was substantially less than 3% of the MSRP for the vehicle.
- Proceedings Below. Dr. Gore never contacted BMW to complain about the refinishing or to ask for any kind of recompense. Instead, he simply filed suit in Alabama state court. The complaint alleged that BMW’s failure to disclose to Dr. Gore that it had performed some refinishing on his vehicle prior to selling it to German Auto constituted fraud, suppression, and breach of contract. At trial, it was undisputed that the only flaw in the refinishing of Dr. Gore’s car was a three or four-inch tape line on the rear fender that the technicians inadvertently had failed to remove. There was no evidence that the paint had faded, chipped, or bubbled or that it was likely to do so in the future. The colors of the refinished surfaces matched the colors of the rest of the car. There was no unusual film build-up, and the gloss was exactly what would be expected of a vehicle that had come straight off the assembly line. In short, with the excep- tion of the tape line, which could have been buffed out without damage to the car’s finish, Dr. Gore’s vehicle was indistinguishable from one that had not un- dergone refinishing. Although these facts raised serious doubt about the materi- ality of the non-disclosure, the case was submitted to the jury on the strength of the uncorroborated testimony of the former owner of German Auto that even perfectly refinished vehicles suffer a 10% diminution in value. During his closing statement, Dr. Gore’s counsel requested compensatory damages of $4,000—representing 10% of the approximately $40,000 purchase price of Dr. Gore’s car—and punitive damages of $4 million. The closing statement made clear that the latter figure represented a penalty of $4,000 per car for each of the approximately 1,000 cars that BMW had refinished at a cost of more than $300 and sold as new anywhere in the United States over a ten-year period: “They’ve taken advantage of nine hundred other people on those cars that were worth more—the damage was more than three hundred dollars. If what Mr. Cox said is true, they have profited some four million dollars on those auto- mobiles. Four million dollars in profits that they have made that were wrong- fully taken from people. That’s wrong, ladies and gentlemen. They ought not be permitted to keep that. You ought to do something about it.
“I urge each and every one of you and hope that each and every one of you has the courage to do something about it. Because, ladies and gentlemen, I ask you to return a verdict of four million dollars in this case to stop it.” The jury did precisely what Dr. Gore’s counsel requested, awarding Dr. Gore $4,000 in compensatory damages and $4 million in punitive damages. BMW then filed a combined motion for judgment notwithstanding the verdict, new trial, and remittitur. The trial court denied the motion in all respects.
294 Federal Appellate Practice Ch. 7.
Notwithstanding his total lack of experience with ATVs and the obvious dangerous condition of the vehicle, LaPlante did not bother to familiarize him- self with the vehicle on a flat smooth surface. Instead, for his first ride ever, he elected to ride down a steep (15 degree) mound, which overlooked an even steeper (30 to 35 degree) cliff. All that was between the mound and the cliff was a 12-foot wide dirt road abutted by a 6-foot shoulder. According to his accident-reconstruction expert, LaPlante, after descending the mound, failed to negotiate a left turn onto the dirt road. Failing also to brake the vehicle, LaPlante drove off the cliff and down the side of the mountain, striking his unprotected head on a rock 45 to 50 feet below the edge of the cliff. As a result of the impact, LaPlante suffered paralysis and brain damage. Note that parts of this statement of facts are fairly “argumentative.” Contrary to conventional wisdom, a statement can be argumentative so long as it fairly and accurately conveys the relevant facts. The permissible “argu- ment” comes in the way that the facts are introduced and organized. The goal is to depict the facts accurately but with an emphasis, focus, and context that presents the “story” of what happened in as sympathetic a way as pos- sible for the client. The narrative tries to convey to the appellate court that, even if the injured plaintiff is not out of court because of his own contribu- tory negligence, he should not be able to shirk all personal responsibility for the tragedy that brought the parties into court.
7.6 Organizing the Brief
Organizing a brief properly is one of the most challenging aspects of brief writing. You should strive to avoid redundancy while making sure that you have sufficiently laid the groundwork for each paragraph and section. As noted in the Introduction and at various other points in this treatise, the goal of trying to persuade federal appellate judges to rule in your favor requires that they understand your legal arguments and their relationship to the facts. Not only must you decide the overall sequence of the points you want to make, you also must develop each point in some kind of organized way. The chapters in this treatise dealing with the opening brief, the response brief, and the reply brief offer some suggestions about how to decide what organization to use. There is no single “right” organization. The crucial point, however, is that there must be some organization. You must understand it, and it must be intelligible to your audience—the members of the court into whose hands your brief is committing your client’s fate. For all but the most innately intuitive of brief writers, it is generally a good idea to prepare and then refine a detailed outline. One virtue of devel- oping and following an outline is that it helps avoid needless duplication or repetition of the sort that can creep in unwittingly when you are not sure whether you have made a point or where it belongs. To be sure, some repetition is built into the structure of the brief: You may have a Statement of the Case, an Introduction, a Summary of the Argu- ment, and then the Argument itself. Obviously, some of the same points will be made in both the Argument and the Summary of the Argument. Similarly,
296 Federal Appellate Practice Ch. 7.
you may decide to repeat certain key facts in both the Statement of Facts and the Argument. Nevertheless, even in these circumstances, to avoid the Ground Hog Day effect, you should find different ways of articulating the point. You also should vary the level of detail you employ: If you set out relevant facts comprehensively in your statement, for example, you can discuss them more generally in a subsequent introduction to your argument. This kind of subtle repetition and layering can increase the persuasive force of your brief by cre- ating a recurring theme that unifies your presentation. There is seldom any justification for repeating the same point within the Argument section, however. Typically, redundancy within the Argument sec- tion is a function of disorganization and laziness. Many lawyers try to excuse this flaw by claiming that they want to ensure that the court does not miss the point. Making the same point at more than one place in the Argument section, however, does more to confuse than to clarify. You are sure to cause judges and clerks to start asking what the difference is between the two points when, in fact, there may be none. And it should go without saying that busy judges prefer a short nonrepetitive brief to a ponderous one that either re- peats the same point or, even worse, makes different arguments in support of the same point in different places within the brief. As Justice Scalia put it, “I want it there in front of me, I want it clear, and I want it fast. And if possible, I want it elegant. But prolixity is probably the worst offense that most un- skilled brief writers are guilty of.” 20 For those lawyers who will admit to having a weakness in this area—i.e., the consciously incompetent in the Maslow/Garner framework—we recom- mend using a “reverse outline.” Once you have written your draft, break down the Argument section into an outline. Look to see whether the same or re- lated points appear in different places within the outline. If there are any instances of that, try moving them to the same place. Cut the redundant sentences, and smooth the transitions between the remaining sentences. What is left should be a single, coherent, and complete treatment of the issue.
7.7 Maximizing Credibility
Of course, even the most engaging story can persuade only if it is be- lieved. Just as important as telling a compelling story is convincing the court that your brief fairly portrays the facts and law. The court is much more likely to adopt your reasoning, if it concludes that you have been an honest advo- cate for your position. Nothing undermines the effectiveness of a brief more than statements that fall apart upon examination. So, no matter how tempt- ing it may be to use “poetic license” when you are drafting your brief, do not do it. Do not obfuscate or gloss over the difficult questions, but instead squarely address the matters that are most likely to trouble the court. Every single
(^20) Interview by Bryan A. Garner with Antonin Scalia, Associate Justice, United States Supreme Court, Washington, D.C. (2006–2007), available at http://www.lawprose.org/supreme_court.php.
Ch. 7.7 Effective Brief Writing 297
Chances are I’ll be seeing that district judge soon at one of those secret confer- ences where judges go to gossip about the lawyers. I find that you can always get a real chuckle out of the district judges by copying the page where he is de- scribed as “a disgrace to the robe he wears” or as “mean-spirited, vindictive, biased and lacking in judicial temperament” and sticking it under his nose right as he is sipping his hot soup. 21 You can easily highlight errors in the court’s reasoning without deni- grating the judge. The following excerpt is from one of our briefs in which we successfully sought reversal of a district court’s ruling that an exclusive franchise arrangement violated the dormant Commerce Clause. The passage is highly critical of the district court’s reasoning but nonetheless is respect- ful in tone.
The district court held that the Agreement and Ordinance discriminate against interstate commerce—and hence are virtually per se invalid—on the ground that the City “is favoring one local hauler over all others” without hav- ing “eliminat[ed] the market entirely.” Doc 123–Pg 13. Under this ruling, a municipal government cannot, consistent with the Commerce Clause, grant a private contractor an exclusive waste collection franchise unless the municipality performs the administrative task of billing consumers of waste collection ser- vices (or funds the collection of waste through tax dollars) and then pays the franchisee out of public funds. That decision is unprecedented. Indeed, in a recent decision, another Florida district court stated that it had not found, “upon exhaustive independent research, a single case that supports the notion that a city’s attempt to regulate the collection of waste is violative of the commerce clause.” East Coast Recycling, Inc. v. City of Port St. Lucie , 234 F. Supp. 2d 1259, 1264 (S. D. Fla. 2002) (emphasis added). The district court’s reasoning does not support its ground-breaking conclusion. As an initial matter, the district court’s factual premise—that the City was “favoring one local hauler over all others” (Doc 123–Pg 13 (emphasis added))— is inherently flawed. As the court itself elsewhere recognized, there was no local favoritism involved in Delray Beach’s selection of BFI, and then WM, as the exclusive franchisee. See id. at 10 (“Plaintiff has neither alleged nor shown that Defendants prohibited any non-local entities from bidding.”). Moreover, neither BFI nor WM was required to make local investments, hire local workers, or bring the C&D waste to local facilities. In short, by deciding to grant exclusive rights to one hauler, the City was neither favoring local interests nor burdening out-of- state interests. It was simply requiring (for a limited period) that the inherently local service of waste collection be performed by only one company. Even if doing so had some incidental effect on interstate commerce (and it is hard to see how it could), it did not constitute discrimination against interstate commerce. The legal premises of the district court’s ruling were equally unsound. In ruling that such an exclusive waste collection franchise violates the Commerce Clause, the district court relied principally on Carbone and USA Recycling. But neither case supports the district court’s belief that an exclusive waste collec- tion franchise discriminates against interstate commerce if the City allows its chosen contractor to bill consumers directly for waste collection. It is equally important to avoid any appearance of disrespect to your opponents or their counsel. Ad hominem attacks should be entirely off-limits. You really do not want to divert the appellate court’s focus so that the issue becomes a choice between honest lawyers and deceitful lawyers rather than a
Ch. 7.7 Effective Brief Writing 299
(^21) Honorable Alex Kozinski, supra note 15, at 22.
decision between competing views of the law. Indeed, why risk putting your own credibility on the line, if the court may decide that it is you rather than opposing counsel who is overreaching? Keep the focus on the merits of the opposing party’s case, not on opposing counsel. Moreover, you should discuss your opponent’s arguments respectfully, no matter how much you disagree with them. Say that they are “wrong,” “mis- guided,” “flawed,” or “illogical,” but avoid pejorative words like “ridiculous,” “preposterous,” “absurd,” or “dishonest.” Keep in mind that the court may find your opponent’s position persuasive in some respects. If you are too dis- missive or insulting in talking about the other side’s case, you may lose cred- ibility. Or you may inadvertently divert the court’s attention from your argu- ment. As Judge Kozinski more colorfully put it in a speech on ways to lose an appeal:
One really good way of [diverting attention from the main issue] is to pick a fight with opposing counsel. Go ahead, call him a slime. Accuse him of lying through his teeth. The key thing is to let the court know that what’s going on here is not really a dispute between the clients. What is really going on here is a fight between the forces of truth, justice, purity and goodness—namely you— and Beelzebub, your opponent. 22 You may genuinely believe that opposing counsel has distorted the record or misused case authority. You may even be right. The challenge is to restrain your righteous indignation and lay out the relevant points of dispute so that the appellate court can see for itself that your opposing counsel has taken undue liberties with the law or facts. In that process, avoid referring to op- posing counsel by name or title and keep the focus on the adverse party— thus, “appellant asserts * * * ” rather than “appellant’s counsel asserts * * * .” The following passage from a Mayer Brown brief shows what we mean about being forceful but respectful. In this case, the plaintiffs-appellants ar- gued that, although they had sued seeking to enforce a contract that con- tained an express waiver of the right to a jury trial, they were nonetheless entitled to have a jury adjudicate the defendant’s claim that the contract itself was a fraud. We believed this to be an entirely baseless argument that might nevertheless confuse the court. Here is how we addressed it:
[Plaintiff] offers no support for its position that the plaintiff in an action seeking to enforce a contract may avoid a jury waiver within the contract simply because the defendant disputes the contract’s validity. The two cases that [plain- tiff] cites do not support that position. Gevers v. Wrights Ex’rs , 18 N.J. Eq. 330, 334 (Ch. 1867)—an ancient decision concerning the enforceability of a volun- tary promise to give after-acquired property to children—is entirely irrelevant. In the other case, Battle v. General Cellulose Co. , 23 N.J. 538 (1957), the court ruled that “[t]he one who denies the existence of a contract” containing an arbitration clause may be entitled to a judicial determination of the contract’s validity before the clause is enforced. Id. at 543–544 (emphasis added). That, of course, makes perfect sense, as there is no inconsistency in denying both the contract and the jury trial waiver. That is fundamentally different from [plaintiff’s] situation, which relies on the existence of the [contract], jury waiver and all, in seeking millions of dollars in damages.
300 Federal Appellate Practice Ch. 7.
(^22) Id.
