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November 28, 2018 Articles

Tried-and-True Practices for Today’s Generation to Try

Some tips for today based on how we used to do it in the good old days.

By Sylvia H. Walbolt

So, you want to stand out and shine as a young appellate lawyer? Consider making some of the practices of olden times a regular part of your written appellate advocacy. In no particular order, here are some tips for today based on how we used to do it in the good old days.

Tip No. 1: Embrace Paper

Because there were no computers to do a word search for us, we used to read actual books containing the reported decisions. However quaint that might strike you today, it had the enormous benefit of causing lawyers to read the decision as a whole—not just the sentence containing the particular word for which we asked the computer to search.

Consequently, there was far less misunderstanding or mischaracterization of cases. By reading the decision on paper, the lawyer usually absorbed it better than by reading it on a computer. The lawyer caught caveats to the holding. The lawyer picked up compelling points leading to the holding for use in reinforcing the argument.

To be sure, a careful lawyer can do all of this on a computer. But all too often the speed and ease of use of a computer word search results in poor comprehension of the decision and its underpinnings. Scientific studies comparing the very different brain activity of a reader looking at something on paper and a reader looking at it on a screen leave no doubt that this is a reality in the computer and smartphone age.

So, if your computer comes up with what appears to be a really good, on-point case, take the time to read the entire case on paper.

Tip No. 2: Eschew String Cites and Cursory Parentheticals

Advocates used to highlight and carefully develop the best one or two cases as part of the text of the argument itself. The custom today seems to be to bury these cases with a mere citation and cursory parenthetical. That often loses the full impact of a compelling decision in your favor, especially if it is included only as one part of a string cite, because the eye tends to skip over (or only quickly skim) citations.

Discussing the case in a couple of sentences in text usually allows you to demonstrate in the most effective way why the case should cause the judge to rule in your favor. It makes clear to the judge that your argument has legs, as another court already agreed with it. A (pithy and pointed) quote included in text is more likely to be read—and its value appreciated—than a quote in a citation parenthetical.

Once you discuss your best and closest case, then additional, supporting citations can be set forth in a more conclusory way. Try this and see if you don’t think it is a more persuasive method of advocacy.

Tip No. 3: Use State Books and Treatises

Because the statute books were in the library right next to the reporter volumes, you always were reminded of that resource in researching your issues. Not only were young lawyers more conscious of the potential importance of statutory or regulatory authority, reading that authority on paper usually resulted in a better understanding of how it fit into the broader context of the entire statutory or regulatory scheme. It also tended to focus the lawyer on the legislative history.

One of my favorite appellate victories occurred because a thorough young associate found an obscure statute in the state insurance code, which never had been cited in a case but helped us prevail on an insurance coverage issue. Today, you need to make a conscious effort to reach out to statutes and regulations for possible support of your legal positions on issues other than the statute or regulation itself.

Starting with a respected treatise or other secondary source often can provide you with both an overview of the law and nuances of the law. Picking up and reading such resources can pay huge dividends that may be lost by a mere computer search of the case law.

Tip No. 4: Invest in Bull Sessions

Because we had to walk to the library to gather the books with the cases we wanted to read, rather than sit in a closed-door office looking at the computer screen, we regularly came across other lawyers sitting in the library surrounded by the books they were reading for their case. Sometimes a bull session ensued, providing cross- fertilization by fertile minds with different degrees of experience in different areas of the law. You always came away a better lawyer, and often with pointers you never would have considered.

With the advent of computers, we can work all day without leaving our desks. That is not a good idea. Taking the time to go out to lunch with others—rather than eating at your desk by yourself—can provide opportunities to pick the brains of others to your benefit and that of your client.

Tip No. 5: Make Time for Yourself

And speaking of your benefits . . .

Back in the day, you could get away from your work once you left your office. You would be called at home only if it was a true emergency. As a result, you had some downtime for yourself each week. We even took vacations out of contact with the office.

Today, just as you make opportunities to kick around arguments and issues with others, you must consciously make time for yourself personally. Religiously take some time off from work each week, without being chained to your computer or phone. You always will come back to your work with your creative juices refreshed. And sometimes your brain will have been working subconsciously to resolve issues with which you were grappling before you set your work aside.

If you also use some of that time away from the office to read (good) books, that alone will improve your writing. Best of all, by taking time for yourself regularly, you will not burn out before your time.

Tip No. 6: Outline Written Work

Outlining appears to be a lost art. But, in my judgment, it is the most important part of the writing process. It develops the framework for the brief and enables you to stay on track in writing the brief. It forces you to develop an organized and coherent argument before you begin to write, not as you write. It also will bring any holes in your position to light early on so that you don’t waste time and effort in drafting based on an incomplete or wrong understanding of the law or the issues.

A good outline will provide good headings and subheadings. It will help you write short paragraphs with a single idea in each paragraph and with good topic sentences. In the end, the brief will write itself from a good outline.

But before you begin to put pen to paper or finger to keyboard to write your initial draft brief from that outline, maximize the benefit of outlining. Share the outline with someone else and seek feedback to see if it works. It is much easier (and more efficient) to identify and fix flaws in the organization and flow of the argument at this stage of the drafting.

Before computers, when pens or typewriters ruled all, lawyers did not have the luxury of instantly moving things around in (or out of) a draft. If your secretary had to retype an entire brief (with three carbon copies) at the last minute because you decided to move a paragraph on page one to page 10, things were frosty for a bit. Consequently, lawyers invested more effort and thought in organization up front—usually through an outline! It still is a great way to start your written advocacy.

Tip No. 7: Edit, Don’t Just Proofread

We had hard taskmasters who expected young lawyers to give them a near final draft that they then would improve, not correct. Their high expectations caused us to take considerable care before we ever submitted our written work to them. So, too, you want to submit your best work to your own hard taskmasters, whether they are your senior lawyers or the actual judges themselves. Both editing and proofreading are essential to assure that.

While both editing and proofreading are important tasks, they serve entirely different functions and should be performed in that light. On the one hand, proofreading catches and corrects errors. It usually is the very last thing you do.

Editing, on the other hand, improves the writing by eliminating verbiage, repetition, and long paragraphs while assuring proper transitions and strong—but short—topic sentences. It is where you clarify anything that needs to be more accurate or more precise. It is where you change the passive voice to the active voice and make sure that you are using the best words to advocate your positions. It is where you delete all (or nearly all) of the bolding and italics you have used as you wrote in a frenzy of advocacy, as well as any overstatements or hyperbole.

Editing is when you ruthlessly examine what you have fallen in love with, and became convinced by as you drafted, and now test with as cold and neutral eyes as you can muster. Having a brand-new set of completely cold eyes read the draft can help you enormously in that endeavor.

Tip No. 8: Picture the Judge Reading Your Brief

Not only did we always have oral arguments on appeal, we also used to have trial court hearings (yes, even in federal court) in which we had to defend our written work in front of a real, live human being. That made us very careful about what we said in our briefs.

I once listened to a trial judge chide opposing counsel in a hearing about calling my side’s argument “specious.” It was not a good start to the hearing for him. But at least he was able to apologize before proceeding. Without the hearing, the judge would have remained irked at counsel as the judge engaged in the decision-making process.

So, be as civil on paper as you would be in the courtroom. Get in the habit of writing as if you personally are going to be answering questions from the bench about your argument. This will help keep you honest. This also will help you winnow your argument down to its bare essentials, as a judge may force you to do on your feet, orally, by sharp questioning.

I had another hearing long, long ago in which the federal district judge, who was running very, very late for our scheduled one-hour hearing, told each side they now had two minutes to give her the best case they had for their position. We did that and we won! That two-minute drill is what I now do in my written introductions in briefs.

Tip No. 9: Guard Your Reputation

From our first day at the law firm, every member of our firm delivered the same, paramount message to the young lawyers: No case is worth risking your credibility with the court. Period. End of discussion.

That is equally the case today. Carefully confirm the accuracy of everything you say in your brief. Make sure that it is written in a professional and forceful, but not combative, tone. Be tenacious but not obnoxious.

Whether you win or lose the case, you want to leave the court with a good impression of both your lawyer skills and your integrity. For that matter, no case is worth risking your credibility even with opposing counsel. You never know—she may become an appellate judge someday. You want her to remember you as a professional lawyer, not as a lawyer whose briefs could not be trusted or who did not act civilly in the appeal.

Indeed, as you progress in your appellate career, you will need judges and opposing counsel to speak favorably of you in matters such as board certification and election to honorary organizations. That doesn’t mean that you aren’t a fierce advocate for your client—it only means that you fiercely advocate for your client in the highest professional manner.

A young appellate lawyer with whom I was working on an appeal told me gleefully that opposing counsel had filed a motion citing a statute that did not exist and that we were going to skewer him in the opposing memorandum. I suggested that he instead call the other (young) lawyer and tell him of the error in his citation so that he could correct it himself, without being publicly embarrassed. The call was quickly made, to the benefit of all, including the court. The client was not hurt, as it clearly was just an easily correctable error, and my young lawyer gained a friend and admirer for life.

Now my advice might have been different had the other lawyer been a jerk in the case or made affirmative misrepresentations in his motion. What goes around comes around—always remember that in your own practice of law.

All of these practices are tried and true. They have stood the test of time. Make them a regular part of your own appellate practice today.

Sylvia H. Walbolt is a shareholder of Carlton Fields in the Tampa/St. Petersburg, Florida, area.

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).