Don't Just Take My Word For It...Take Judge Dillard's Word for It!

Judge Stephen Dillard clerked on a federal court of appeals and has been a judge on the Georgia Court of Appeals, one of the busiest intermediate appellate courts in the country, for four years, so he’s an expert on how to and how not to write an effective appellate brief (and a fantastic follow on Twitter: @judgedillard).

Judge Dillard recently wrote an article entitled Open Chambers: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals. 65 Mercer L. Rev. 831 (2014). The article contains loads of helpful and interesting information about the Georgia Court of Appeals, including tips for appellate brief writers, which I summarize below.

As those who read this blog know, briefs are very important, and in his article, Judge Dillard confirms the importance of brief-writing at the appellate level: 

To put it plainly, a lawyer's likelihood of success on appeal before our court is largely dependent upon the substance of the appellate brief(s). As my former colleague, Judge J.D. Smith, has rightly and astutely observed, “[t]he Court's procedures and its institutional culture mean that the brief is almost always far, far more important, [and] far more likely to be outcome-determinative than oral argument.”

Id. at 840.

Include an Introduction

Judge Dillard, like many judges, appreciates an introduction:

[C]onsider giving the court a roadmap of your argument at the outset of the brief. Specifically, I strongly recommend including a “Summary of Argument” section, even though our rules do not currently require it. I am constantly amazed at how many times I read briefs that only get to the heart of the argument after spending ten to fifteen pages recounting largely unimportant background information and procedural history. Get to the point quickly. You do not want our judges and staff attorneys reading and re-reading your brief in an attempt to figure out the basis of your client's appeal….

Id. at 837. For a refresher on how to use introductions, check out my prior posts here and here.

Provide All Required Information and Accurate Record Citations

Judge Dillard also notes the importance of accurately citing the record and including all required information in the appellate brief:  

The quickest way to sabotage your appeal is to fail to substantiate legal arguments or key factual or procedural assertions. [The Georgia Court of Appeals] requires that appellant's brief, among other things, “contain a succinct and accurate statement of . . . the material facts relevant to the appeal and the citation of such parts of the record or transcript essential to a consideration of the errors complained of,” as well as the “argument and citation of authorities,” and that “[r]ecord and transcript citations shall be to the volume or part of the record or transcript and the page numbers that appear on the appellate record or transcript as sent from the trial court.” And when an appellant fails to support an enumeration of error in its brief by (1) citation of authority or argument, or (2) specific reference to the record or transcript, “the Court will not search for or consider such enumeration,” which “may be deemed abandoned.” 

Id. at 837-38. While the procedure and requirements may vary from jurisdiction to jurisdiction, I think this advice is universal.

Understand Physical Precedent

Judge Dillard notes that when using opinions that constitute physical precedent only, lawyers should clearly identify that precedent. Physical precedent plays a special role in appellate brief-writing: 

A physical precedent of the court of appeals is neither binding on the state's trial courts nor on the court of appeals itself, but the opinion is instead merely persuasive authority. Typically, a published opinion becomes a “physical precedent” when an opinion of a three-judge panel includes a “concurrence in the judgment only….”

Id. at  838.

In Georgia, concurrences in judgment only aren’t always apparent, and Judge Dillard reminds lawyers that the “only way an attorney can identify an opinion as being or including a physical precedent is to read the judgment line (which is easy to overlook).” Id. at 838-39. And the only way to know the precedential value of a special concurrence in judgment is to “carefully read that concurrence and make sure that it can be reasonably understood as containing a statement of agreement with all that is said in the majority opinion.” Id. at 839. If not, “then the opinion (or any identified division of that opinion) is not binding in future cases.” Id.

But Judge Dillard cautions that a lawyer shouldn’t avoid citing physical precedent opinions, “especially if [the lawyer] believe[s] that the reasoning contained in that opinion is persuasive…so long as [the lawyer] clearly designate[s] the opinion as being or containing a physical precedent.” Judge Dillard and at least some of his colleagues find physical precedents more persuasive than opinions from other jurisdictions, so declining to cite them could be detrimental.

Judge Dillard’s article is an excellent read for anyone interested in the workings of the Georgia Court of Appeals specifically or appellate practice generally.

"Yeah, Well, That's Just, Like, Your Opinion, Man"

I love quirky citations, and Justice Debra Lehrmann of the Texas Supreme Court gave us a good one last month when she cited Walter Sobchak from The Big Lebowski in discussing the evils of prior restraint. Lehrmann, writing an opinion in a defamation case, noted the intolerable nature of prior restraints on speech, a constitutional cornerstone that “has been reaffirmed time and again by the Supreme Court, this Court, Texas courts of appeals, legal treatises, and even popular culture.” Her pop culture reference is to Sobchak (played by John Goodman) who, when asked to keep his voice down in a restaurant, responds: “For your information, the Supreme Court has roundly rejected prior restraint.” Kinney v. Barnes, No. 13-0043, 2014 WL 4252272, at *2 n.7 (Tex. Aug. 29, 2014).

Lehrmann isn't the first judge to cite the cult classic, though. That honor belongs to Judge Stewart Dalzell of the United States District Court for the Eastern District of Pennsylvania. In an unpublished 2006 opinion, Judge Dalzell addressed Rule 9's heightened pleading standard for fraud claims. The plaintiffs claimed a large pharmaceutical company defrauded them but failed to allege particulars of when and how the fraud occurred. Judge Dalzell noted the plaintiffs also didn't show any attempts to locate the necessary information to properly allege a fraud claim and found that the “plethora of sources available today” do not permit a litigant claiming fraud “to say, as Brandt does in The Big Lebowski, ‘Well, dude, we just don't know.’” Perry v. Novartis Pharm. Corp., No. Civ.A. 05-5350, 2006 WL 83450, at *2 (W.D. Pa. Jan. 12, 2006).

Happy Friday!

 

Making Public Policy Arguments

As any lawyer who has ever tried to make a public policy argument knows, judges are rarely persuaded by pure policy arguments. Most policy arguments start something like this: “Public policy also supports Plaintiff’s/Defendant’s position.” Starting a policy argument with a sentence like that is a nearly sure-fire way to kill your argument. Good legal writers know policy arguments shouldn’t stand on their own but should be integrated into the overall analysis and should be used to bolster arguments based on precedent and authority.

To increase the chance of success, lawyers should carefully choose strong policy arguments and support those arguments with proper authority. For example, policy arguments based on legislative intent or purpose should be supported with legislative history. An argument that a certain ruling would be consistent with past jurisdictional policies can be supported with evidence of those past policies. And a policy argument that a ruling would be consistent with those made in other jurisdictions or by respected jurists can be supported with opinions from those other jurisdictions or jurists.

I’ve written before about Christopher Simmons’s brief in Roper v. Simmons, 543 U.S. 551 (2005), the case where the Supreme Court considered whether executing juvenile offenders violates the 8th Amendment prohibition against cruel and unusual punishment. Simmons’s counsel uses a stellar policy argument (But doesn’t call it that!) to support his argument that juvenile offenders lack of the culpability of adult offenders:

Moreover, a bright line excluding 16- and 17-year-olds from eligibility from the death penalty is consistent with our society's uniform and enduring judgment - expressed in the actions of its legislatures - that adolescents of that age do not possess the same level of personal responsibility as do adults. Eighteen is almost universally the legal boundary between childhood and adulthood, and there is a broad array of legislative prohibitions and protections aimed at those under 18. Our society regards 16- and 17-year-olds as too immature and inexperienced to have a full understanding of the consequences of their decisions, and it does not allow them to vote. It recognizes that

"Jury box cropped" by Ken Lund from Reno, NV, USA

Cropped from the original, Pershing County Courthouse

Jury Box. Licensed under Creative Commons Attribution

-Share Alike 2.0 via Wikimedia Commons

they lack a fully developed capacity for moral judgment, and it bars them from sitting in judgment of others. It understands that they are less able than adults to weigh risk and reward, and it forbids them to gamble. It acknowledges that their selves are still changeable, and it presumes that they lack the capacity to make a lifetime commitment to another person. And, knowing that they are still vulnerable and in need of protection, it requires their parents to protect them. These and other special protections and disabilities embody our society's determination that, before the age of 18, adolescents are not fully formed people, and cannot be held fully responsible for choices made b

be their incomplete selves.

 

Brief for Respondent at 35-36, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1947812 (internal citations and quotes omitted).

 

This is an excellent example of using a strong public policy argument to your advantage. But note that this policy argument isn’t made until page 35 of the brief and is used to bolster Simmons’s other arguments based on authority and extra-judicial scientific studies on adolescent development.

 

Finally, a word about policy arguments and trial courts—even strong policy arguments likely will fail at the trial court level if you’re seeking a change in the law. Even though they may agree with an argument, trial courts are bound by precedent. Thus, a trial court may agree with your argument but find it has no choice but to rule against you.

The The Impotence of Proofreading

Happy Friday!

No Reply at All?

At the NACDL conference, where I spoke this weekend, several attendees asked me about reply briefs—when do you need to file one, how should you structure one, and when should you save arguments from a reply brief?

Reply briefs are tough, but here are the rules I live by:

You must think hard about whether you really need a reply brief. As lawyers, choosing not to file a reply brief is difficult because we want to be the most zealous advocates possible for our clients. But as Judge Easterbrook has noted, most reply briefs are really “repeat” briefs.

I doubt the argument that reply briefs are essential because many courts read them first. I don’t read reply briefs first, and I have spoken to many clerks and judges who don't either.  But a kind reader, Chris, emailed to let me know that he's met several judges who do read reply briefs first and use them to gain a clearer picture of the true issues. Chris noted that strong, succinct reply briefs can be immensely helpful for time-pressed judges and clerks. And I agree.

In my opinion, though, using a reply brief to regurgitate the arguments made in your initial brief is unnecessary and burdens the court. But you should file a reply brief if: 

-Opposing counsel raised a counterargument in the response brief that you did not address in your initial brief; or

-You neglected to include a good argument in your initial brief that you want the court to consider; or

-You believe opposing counsel has seriously misstated or misrepresented material facts and you need to correct the court’s understanding of the facts; or

-You feel you absolutely must get the last word in and the court will or may decide the issue solely on the briefs 

But note that the second scenario may result in opposing counsel asking to file a sur-reply brief, and the fourth scenario should be the exception, not the rule. 

If you do choose to file a reply brief, keep it as short as possible. In your reply brief, you can reference or quickly summarize the arguments in your initial brief (thus reminding the court of the strength of those arguments), but you should do so succinctly then move on to address any remaining issues or make additional arguments.*

A reply brief should be structured like an initial brief, but without a statement of facts—you should simply reference the facts provided in the initial brief. Use subheadings to organize your arguments, starting with your best argument first. If you re-cite authority that was cited in your initial brief, provide another full cite for the authority in your reply brief.

If you are certain opposing counsel will make specific counterarguments in response to your motion, you likely will want to address those counterarguments in your initial brief. Doing so will enable you to “get out in front” of any bad facts or bad law and minimize the harm to your client’s case. You should save arguments for a reply brief, however, if: 

-You are unsure if opposing counsel has thought of or will raise certain counterarguments; or

-Opposing counsel’s counterarguments are poor 

Obviously, you don’t want to shoot yourself in the foot by making a counterargument for opposing counsel, especially if you aren’t sure it’s one opposing counsel will actually make. Wait to see if opposing counsel makes that counterargument first, and if made, address the counterargument in your reply brief.

And if you know opposing counsel intends to make an asinine counterargument, don’t give that crazy argument undue credence and sully the good arguments in your initial brief by trying to respond to it there. Instead, use your reply brief to remind the court of your good arguments and then quickly and succinctly address and dismiss the counterargument. 

*Chris also pointed out that some clerks and judges might assume a party that doesn't file a reply brief is conceding his position. This is a good point, but I hope to convince those clerks and judges that their assumption is mistaken, and lawyers are doing them a favor by not filing repeat briefs.