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Beware This All-Too-Common Pitfall of the Appellate Brief

William Ernest Havemann

Beware This All-Too-Common Pitfall of the Appellate Brief
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One of the most common pitfalls of the appellate brief is the acrimonious adjective, or, worse yet, adverb.

Readers may be familiar with filings that refer to an adversary’s position as “preposterous,” “fallacious,” or “asinine.” Readers may have even encountered filings that accuse an adversary of making an argument “ridiculously” or “absurdly.”

Rhetoric like this is usually grammatically unsound and substantively damaging. Acrimonious language may strike a judge as ad hominem. A judge may suspect that a party’s resort to bluster masks a weakness in the party’s legal argument. And a judge may react to accusatory rhetoric with sympathy for the accused. Informed that an argument is preposterous or absurd, the reader’s reflexive tendency is to doubt the accusation as an overstatement and to give the other side an opportunity to defend itself.

Avoiding overheated briefing is particularly important on appeal. In district court, a judge will often have some familiarity with a case and its counsel before reading a filing, which may allow the judge  to contextualize an accusation and evaluate its fairness. But on appeal, judges often come to the briefs with no context other than a bare lower court judgment. Appellate judges value civility and are uninterested in revisiting the slings and arrows traded by the parties below. An appellate advocate does not want the judge’s first impression of a case to be that the advocate is unpleasant.

At oral argument at the U.S. Supreme Court a few years ago, Justice Gorsuch chided the petitioner’s counsel for some overheated briefing, noting that the party’s brief accused its opponent of “illusions, distortions, disastrous and preposterous results, contradictions and anomalies”—what Justice Gorsuch described as “pretty strong language.” The petitioner lost unanimously 36 days later, the first decision of the term. The Court did not find other side’s arguments so preposterous after all.

Acrimony on appeal is often an unavoidable consequence of hard-fought lower court proceedings. And sometimes zealous advocates may become so certain of their position that contrary arguments genuinely do strike them as absurd. But appellate advocates have all the tools of language to lead their judges to that conclusion if it is true. Flatly declaring it to be so—telling rather than showing—is counterproductive.

What happens if the other side starts it? Judges will appreciate the lawyer who rises above the fray. If the urge to respond in kind is overpowering, attorneys can do what Abraham Lincoln did: Write an angry retort, then tuck it away somewhere unsent. Writing the response may be cathartic. The lawyer can then get to the business of responding with persuasive legal arguments, not adjectives and adverbs.