Question of the Week
Briefs and Oral Arguments: What’s Worst of the Worst?
Posted Jun 30, 2009 8:56 AM CST
By Sarah Randag
U.S. Supreme Court Justice Antonin Scalia can always be counted on to let you know what he really thinks. And even though you think lawyers would bring their A game to oral arguments and briefs they put before Scalia (he did write the book on the art of persuading judges, after all), he had a litany of pet peeves to share at the Texas Bar Association's annual meeting last week. In oral arguments, lawyers should pronounce words correctly, or Scalia will be "inclined to think this person is not the sharpest pencil in the box." And Scalia thinks briefs that use italics excessively read "like a high school girl’s diary."
We've asked you time and time again about your grammar pet peeves, but this isn't even about that. What kind of words and phrasing do you see in briefs that drive you crazy? And in court, are you always sitting through hackneyed oral arguments by lawyers who have clearly never read McElhaney on Litigation? If so, we want to read your horror stories.
Answer in the comments below.
Read the answers to last week's question: Do You Check Your PDA During Meetings?
Featured answer:
Posted by Ellen Lorenzen: "I’m a workers’ comp judge, and I have to ask attorneys to turn off their electronic equipment during hearings. If I don’t, they constantly check for messages. My favorite, though, was an injured employee who was checking his text messages while testifying. I asked his attorney to hold his phone until the trial was completed. I expected opposing counsel to ask to see the texts sent and received to see if he had been getting answers from other people, but no objection was raised, and I chose not to inquire myself."
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Comments
Jason
Jun 30, 2009 9:45 AM CST
I have seen one to many briefs where a BigLaw attorney personally attacks a small firm or solo attorney in a brief when they don’t agree with something.
Personal attacks on other lawyers or their firm in a brief should not be tolerated and should lead to a 1 year suspension and sanctions.
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B. McLeod
Jun 30, 2009 11:06 AM CST
I can recall one instance in which opposing counsel, from a mid-sized, regional firm, lost his composure to the point of beating on the lectern with his fist and yelling at the appellate panel (causing me to “flashback” to a famous Kruschev speech). The technique proved ineffective.
In another case, a colleague who was opposing me on an appeal of his own civil case brought an easel, and spent several minutes of his argument putting up, and discussing, poster-board diagrams that were outside the record on appeal. Finally, the presiding judge on the panel asked, “Mr. ____, is any of this material in the record on appeal?” When he acknowledged that it was not, she very gently suggested that he not spend further time on it, as the panel would not be able, under the rules, to consider it. I was deeply embarrassed for my colleague, but was impressed by the way the presiding judge dealt with it.
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Vanessa
Jun 30, 2009 11:41 AM CST
I reviewed an appellate brief where an attorney indirectly insulted the intelligence of the trial level judge throughout the brief. He also for some reason thought it was a good idea to put several phrases in his argument in all caps and used exclamation marks to the point of excess.
Utilizing caps and exclamation marks does not serve to make your argument any more compelling. It just annoys the reader and makes it seem as though you’re shouting at them.
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bg
Jul 1, 2009 12:46 AM CST
I once had to sit through a very long oral argument on a motion to reargue that was brought by a local real estate attorney that dabbles in litigation from time to time. It did not take long for him to utter the words, “you were wrong” to the judge, who then became rather angry. The judge then tossed this lawyer a shovel and helped him dig himself in further as he continued to tell the judge repeatedly that he thought his prior decision was wrong, as the judge became more and more visibly angry. Unfortunately, it was a very full motion term and there were quite a few attorneys, including me, awaiting their opportunity to argue their cases. Throughout his argument, none of us knew where to look, dreading the moment of our own argument because this judge is known to have a temper, and now it was primed. After about ten minutes, the judge decided to issue his decision, letting this attorney know judge how wrong he was. One lesson I learned from this motion was if you do not agree with the judge’s decision, appeal it; motions to reargue are for fools who like to live dangerously.
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Hadley V. Baxendale
Jul 1, 2009 7:42 AM CST
Adverbs, and most adjectives. Our senior partner, who was a great writer, would say, “It will be a great brief after you take out all the adverbs.” You sound shrill, and a bit desperate, when you say “completely disregarded” “utterly failed” “wholly unnecessary” and the king, “totally” about anything. Nothing we write about is all that extreme.
These adverbs are often incorrectly applied to words that do not take modifiers, such as “destroyed” or “unique.”
Also, I see people trying to breathe life into dead metaphors by adding “literally,” as in “left him literally holding the bag” when there was no bag involved at all.
And “if” is always better than “in the event that.”
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Raleigh
Jul 1, 2009 8:05 AM CST
Worst drafting came from a story that happened to a colleague and is the epitome of bad “cut and paste”. Other Attorney prepared a single Affidavit to support a Motion for Summary Judgment, and every single paragraph in the Affidavit began with “Upon information and belief….” Hearing began, Colleague pointed this fact out the Judge, who denied the Motion and called the next case. As Colleague walked out of the court room, the other Attorney, flabbergasted, followed her out frantically asking “what just happened here?”
My personal favorite is when an attorney uses “clearly” in a Brief. In my first read, I always circle it and focus my attention there, because almost invariably it is a red flag that the drafter thinks their own argument is weak and that they needed a persuasive adverb to get that argument over the threshold.
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Jaws
Jul 1, 2009 8:07 AM CST
One of my pet peeves is incomprehensible “questions presented for review” that do not clearly state why an appellate court should care. Problems range from not being a question (when is that last time you began a question with “Whether…”?) to convoluted, recursive, single-sentence monstrosities that would be rejected even in a patent application.
It’s not just bad advocacy and argumentation; it undermines respect for the law, and leads to illogical results. And it irritates the heck out of me that a profession founded on parsing the written word cannot, itself, write coherently.
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Charles Morehead
Jul 1, 2009 8:37 AM CST
The worst thing a lawyer can do is read to the court. Are you kidding me? No judge listens after the third sentence…Charles
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Anonymous
Jul 1, 2009 9:02 AM CST
What a great question. However, regardless of how many responses you receive, there’s really only one truthful answer from anyone that has previously earned a J.D.: “The worst legal document that I’ve read is any legal document that I haven’t written…”
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Tracy
Jul 1, 2009 9:45 AM CST
In a case that spanned 8 years, my opposing counsel, a big-named partner at a big-named DC firm always started his briefs with a quote from a book that he felt encapsulated his “ire du jour”. So we were treated to witty passages of some classics and not so classic novels. My personal favorite, however, was
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Tracy
Jul 1, 2009 9:46 AM CST
In a case that spanned 8 years, my opposing counsel, a big-named partner at a big-named DC firm always started his briefs with a quote from a book that he felt encapsulated his “ire du jour”. So we were treated to witty passages of some classics and not so classic novels. My personal favorite, however, was a quote from the Queen of Hearts in Alice in Wonderland. He felt that our motion was premature and likened our approach to the Queen’s “sentence first, verdict afterwards”. I can’t imagine the judge found all these quotes amusing.
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Trent
Jul 1, 2009 10:36 AM CST
In writing:
“Utilize” for “use.”
“Subsequent to” for “after.”
“Prior to” for “before.”
“In the event that” for “if.”
“In order to” when “to” will suffice.
“Pursuant to” for “under” or “in accordance with.”
Beginning a sentence with “however” (except in the “in whatever way” sense).
Beginning a brief or motion with “COMES NOW” or other pointless formalities.
Use of all caps for more than a few words.
Full citations in the text.
Overuse of the word “clearly.”
Modifying “unique.”
Most uses of “unavailing.”
“With regard to” for “about.”
Unnecessary personal attacks or insults.
Arguments that don’t discuss or cite to any authority (I’m constantly surprised by lawyers who say, “The law requires _____,” but don’t provide any authority.
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Diana
Jul 1, 2009 11:03 AM CST
Personally I would rather write a 30 page brief on a case than engage in an oral argument. To me the written brief allows much more control.
The two things that really tick me on in any written breif are disorganized writing and attacks on opposing counsel. There is nothing owrse than trying to follow a brief where nothing is in chronological order. If I have to do a time-line to understand my opponent’s brief I can imagine what the judge has to do. Personally I do not want to work that hard just to understand why this disorganized person thinks my client is wrong.
The second major problem in written briefs is when one attorney attacks the other attorney. Of course, that means that the writer has zero case.
My first Federal DOL employment case the opposition spent several pages of the brief ranting as to how it was my fault that their client was unaware of certain procedural actions, while their client was pro se. The first time I read this I was so mad at the very serious accusations of my ethics. The judge was not to happy either, he called the biglaw firm on it and I go a written apology. In the end I won the case, because my opponent had nothing on their side.
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Mary
Jul 1, 2009 12:37 PM CST
The time at oral appellate argument when opposing counsel said the panel should overturn the trial court’s decision because if it didn’t, “there would be no rule of law, for Christ’s sake!” The court of appeals affirmed without any apparent direct help from any higher power.
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Laughing after reading #14
Jul 1, 2009 1:23 PM CST
One of the biggest mistakes in appellate argument is poor time management. Typically, this involves running up to or even exceeding the time limit, which leaves an awkward last impression on the court. In one oral argument, I witnessed the opposite—a very experienced, highly-regarded appellate specialist from BigLaw used less than 10 minutes of her 15-minutes alloted. After a very disjointed argument in which it did not seem that the attorney ever got her bearings (and she did not get barraged with tough questions from the panel to throw her off course; it was more like she just wasn’t prepared or she got a terrible case of stage fright) I fully expected her to pull things together into some logical, concise, brilliant conclusion. Now, the law was on my client’s side, so I was very confident in my briefs and argument, but I at least expected the appellee to put up a fight. Instead, she stopped at about 10 minutes into the argument and said, “Thank you,” and began to gather her notes and walk away from the podium. Incredulously, the chief judge asked, “Is that it? You don’t have anything else?” The attorney said, “No, that’s it. Thank you.” The look on the judge’s face was priceless. A day or two after argument, the appellee filed a letter brief with the court to “supplement” its oral argument (meaning, to stae all the cases and raise all the points that could have/should have been raised in the last 5 minutes of oral argument while the judges had an opportunity to ask questions). Not wasting any time, I fired off a response that pointed out how the appellee had left five minutes on the clock at oral argument. ‘Too little, too late.
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hvb
Jul 1, 2009 2:17 PM CST
Any time a judge encounters “Simply put,...” sh eis free to strike the rest of the brief, and retain only the rest of that paragraph. The auhtor has telegraphed that the rest is superfluous.
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John Bennett
Jul 1, 2009 5:46 PM CST
While clerking for a federal circuit judge in Florida, while that state was still in the 5th Circuit, I decided I would be able to do alright in the practice of law after I saw an appellate brief that consisted entirely of block quotes from Am. Jur. 2nd.
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bg
Jul 1, 2009 6:32 PM CST
I have encountered more than one brief where opposing counsel simply quoted the annotations, without reading the cases. Had they taken the time to read the cases, they might have learned that they did not say what the annotations said. Plus, the annotation is not law. And I have encountered too many annotations that were descriptions of one party’s argument, rather than the court’s decision.
I also feel it is a weakness when opposing counsel feels compelled to discuss the facts of the cases he is citing, especially if there is nothing particularly remarkable about them. The strongest arguments are made without the seemingly obligatory discussion of the facts of at least one case. Save it for the rare occasion when you absolutely must demonstrate something to the court. Otherwise, you end up sending the court on a needless tangent that slows your momentum. It will also give your discussion more impact.
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TL
Jul 2, 2009 10:52 AM CST
Further Affiant Sayeth Not…Herein and Herein contained…TO THE HONORABLE JUDGE OF SAID COURT…etc.
I suppose people who write briefs and draft like this would prefer that we return to the time of powdered wigs and frilly ascots.
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Steve A
Jul 2, 2009 5:31 PM CST
Personally, I’m surprised at the poor spelling and grammar in these posts. Irony, anyone?
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T.R.
Jul 8, 2009 12:34 PM CST
For me, excessive wordiness is the biggest peeve. Aside from that, I do not much care if a writing contains certain signals (such as the aforementioned “Simply put"s or “However"s), features an unusual amount of latin, or draws from a pallette of words that I typically might avoid. Writing is as much art as science, and if I can sense an actual voice in there somewhere, I’m pretty happy.
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Daniel Reitman
Jul 10, 2009 11:17 AM CST
There are some good points here. I’ve used more adverbs than I probably should have at times.
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Steve M.
Jul 10, 2009 2:38 PM CST
Recently, before the appellate court, opposing counsel, after losing on appeal requested for reargument pursuant to the Rules of Appellate Procedure. I answered and opposed pursuant to the Rules. Opposing counsel then submitted a Reply to my Answer, which was rejected by the Appellate Clerk as the Rules do not allow for it. Thereafter, opposing counsel filed a Motion to file a Reply (also not allowed under the Rules) to which he attached his original rejected Reply as an exhibit. If it is neither appropriate, nor evidenciary, it should not be attached to your moving papers!
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