Category: Appeals

Bad Writing Kills Client’s Big Dreams

Angry client comes to lawyer. Angry client had big dreams of holding his own outdoor concert series. He thought it would be epic.  And like Wayne Campbell and Roy Kinsella years before him, he believed that if he built it, they would come.  So he set to work building his concert facility. But alas, the cops shut him down over security concerns, thereby dashing his dreams. 

So he did what people do: He went to a lawyer. Lawyer is moved by angry client’s story. “We will draft such a lengthy and powerful complaint that it will force them to relent!” Lawyer says. “Hoorah!” says angry client. Lawyer then grabs his Dictaphone and sets to work spewing forth every lurid detail. Somebody types it up. Who? We don’t know. The lawyer then files it. But alas (yes, a second alas), he either failed to proofread it or was so jacked on Aerosmith tunes that he must have just plain missed all the typos, punctuation and grammatical errors. The defense moves to dismiss—“What does any of this even mean, your Honor…?” 

But of course, district court judges are loath to kill dreams so easily. The judge gives the dreamers a second chance, and then apparently a third chance to amend. But it seems the story was just too good to leave any of it on the cutting room floor—or at least clean up its punctuation and grammatical errors. The district court tossed it. Enough is enough.  

The dreamers were not done—they never are when it comes to litigation.  They appealed to the Seventh Circuit (Stanard v. Nygren, 658 F.3d 792 (7th Cir. 2011)).  Surely that court would see the merit in their cause.  But the Seventh Circuit was unmoved.  It affirmed the dismissal; calling the third amended complaint nearly incomprehensible, lacking in punctuation, and riddled with grammatical and syntactical errors.  In the process, the court felt compelled to acknowledge (at n.7) “the unfortunate reality that poor writing occurs too often in our profession[.]” The takeaway: Raise the bar, write well, be thorough yet concise, proofread, and then rock on.

The takeaway: Raise the bar, write well, be concise, proofread, and then rock on.

Build a Cathedral

Justice Robert Jackson (one of the great justices and writers in Supreme Court history and a former Solicitor General) once gave a parable about three stone masons, each of whom was asked what they were doing. The first answered, “Earning my living”; the second replied, “I am shaping this stone to pattern”; but the third said, “I am building a Cathedral.” Applying the parable to appellate advocates, Justice Jackson explained:

The attitude and preparation of some show that they have no conception of their effort higher than to make a living. Others are dutiful but uninspired in trying to shape their little cases to a winning pattern. But it lifts up the heart of a judge when an advocate stands at the bar who knows that he is building a Cathedral. 

Seth P. Waxman, In the Shadow of Daniel Webster: Arguing Appeals in the Twenty-First Century, 3 J. App. Prac. & Process 521, 528 (2001) 

Get Your Hands Dirty

“Arguments, like gardens, take work, and a party who hopes to prevail on appeal should be willing to dig in the dirt and not expect that opposing counsel or the court will do that work for them.”  

A.S. v. R.S., 2017 UT 77, ¶ 16, 416 P.3d 465. 

Know all the facts and law that surround

“Know thoroughly each fact. Don’t believe client witnesses. Examine documents.  Reason; use imagination.  Know bookkeeping—the universal language of business; know persons … know not only specific cases, but the whole subjects.  Know not only those facts which bear on direct controversy, but know all the facts and law that surround.” 

–Louis D. Brandeis

Oral Argument Lessons from The Godfather

Don’t be combative like Sonny. Don’t be weak and spineless like Fredo. Instead, be cool and confident like Michael.

Oral Argument Preparation

I have spent a lifetime involved in sports, including over 20 years as a youth and high school football coach.  I have learned that oral argument preparation is no different than game preparation. You don’t just draw up plays and hope to execute them on game day. You run them over and over and over in practice. You have certain plays for certain situations.  You practice your two-minute drill, knowing you may have to roll into it if the situation presents itself. You would never think to just show up to the game with your head full of knowledge hoping it all works out on the field. 

Same with oral argument. Don’t stand in court and hear your voice for the first time trying to articulate the argument.  Rehearse it.  And do so as much as you can in the conditions in which you will be delivering it: Not sitting at your desk with crap scattered around you mumbling to yourself. Do it on your feet, eyes up, outline down, projecting your voice, hearing yourself make the argument.  I have a portable lectern that sits atop my desk at the office and at home for rehearsal. I stand behind it for hours, going through my argument, preparing for any kind of court—hot, cold, and lukewarm. 

I also prepare flash cards—my appellate “burn stack”—containing questions (typically around 100 of them) that I may be asked, then I flip them and try to answer out loud to ensure I have answers and can articulate them with precision.  My only rule is spare no absurdity.  I think of hypotheticals to stretch my argument to the limits. And I articulate the answers, out loud.  I will often enlist colleagues to come up with different questions to throw at me. They almost always come up with stuff I didn’t think of, and I walk through the answers with them.  It can be as casual or formal as you want, a phone or office visit or a full-blown moot court—depending on the needs of the case. 

In preparing for one argument a few years ago, I thought I was ready and had covered every possible issue and question. But following my regular procedure, I had a discussion with a colleague a few days before. He came up with a question that I never thought of. We worked through the best response. And as it turned out, that was a key question posed by a judge on the panel and I responded without a hitch and rolled into the next point seamlessly.

Some may say, well, that just takes too much time and the client can’t afford it. Chief Justice Roberts (at one time known as very expensive appellate advocate Roberts) once gave the best response to this type of thinking. He said, in effect, that he was never going to stand before the Court and explain that the answer to a justice’s question was “not in the budget.”  All serious appellate advocates should take the same approach.

The Citation Wars: Cleaning up Quotations – Part 3

I wrote in a post back in January 2018 that the Utah Court of Appeals had joined the growing number of courts across the nation using the parenthetical (cleaned up).  In a nutshell, (cleaned up) is used “to indicate that internal quotation marks, alterations, and/or citations have been omitted from a quotation.”  State v. Cady, 2018 UT App 8, ¶ 9 n.2.  A few months later, as I explained in this post, the Utah Court of Appeals adopted the parenthetical (quotation simplified) in place of (cleaned up).  

The court of appeals explained that (quotation simplified) was now part of its internal style guide.  See State v. Gonzales-Bejarno, 2018 UT App 60, ¶ 12 n.3.  But Judge Mortensen remained steadfast in using (cleaned up) even after that pronouncement.  See, e.g., Warrick v. Property Reserve, Inc., 2018 UT App 197, ¶¶ 6, 12, 18, and 19 (using (cleaned up)).   

The matter was ripe for the Utah Supreme Court to weigh in.  It now has. And the winner is (cleaned up).  See Salt Lake City v. Kidd, 2019 UT 4, ¶ 14.  

Though I have used (quotation simplified) in briefs to the Utah Court of Appeals, given the widespread use of (cleaned up) and the Utah Supreme Court’s apparent adoption of the parenthetical, it is likely the better choice.  And if you’re still on the fence about whether to use the parenthetical at all, remember that the Bluebook gobbledygook—(citing this) (quoting that) (alternations original) (blah blah blah)—counts against your allotted number of words and lengthens each page of your argument with unnecessary verbiage and clutter.  Get on board.  


(Quotation Simplified)

As I wrote in a post back in January, in State v. Cady, 2018 UT App 8, the Utah Court of Appeals joined the growing number of courts using the parenthetical “(cleaned up)” to “clean up” citations to quoted material. A few months after Cady, in State v. Gonzales-Bejarno, 2018 UT App 60, the court used the parenthetical “quotation simplified” in place of “cleaned up.”  Id. ¶ 12. With a nod to Cady, it noted, “[t]he court’s internal style guide has adopted the parenthetical “quotation simplified” in the spirit of the nascent “cleaned up” parenthetical.” Gonzales-Bejarno, 2018 UT App 60, ¶ 12 n.3.

Since then, the court has been liberal in its use of the parenthetical, as shown in the following cases:

  • Kirkham v. McConkie, 2018 UT App 100
  • State v. Guzman, 2018 UT App 93
  • True v. UDOT, 2018 UT App 86
  • State v. Norton, 2018 UT App 82
  • State v. Brocksmith, 2018 UT App 76
  • State v. Peraza, 2018 UT App 68
  • Pulham v. Kirsling, 2018 UT App 65
  • State v. York, 2018 UT App 90
  • Gerwe v. Gerwe, 2018 UT App 75
  • State v. Whitbeck, 2018 UT App 88
  • Palmer v. St. George City Council, 2018 UT App 94
  • NPEC LLC v. Miller, 2018 UT App 85
  • Berrett v. State, 2018 UT App 55
  • State v. Becker, 2018 UT App 81
  • Blackhawk Townhouses Owners Ass’n v. J.S., 2018 UT App 56
  • Munoz-Madrid v. Carlos-Moran, 2018 UT App 95
  • State v. Rinehart, 2018 UT App 87
  • State v. Mooers, 2018 UT App 74
  • Basin Auto Paint Specialists Inc. v. Ultimate Autobody & Accessories LLC, 2018 UT App 72
  • Boyle v. Clyde Snow & Sessions PC, 2018 UT App 69

So even as “cleaned up” grows in popularity with courts across the country, “quotation simplified” has become the parenthetical of choice in the Utah Court of Appeals for cleaning up quotations.

How to Lawyer Up (and Kill) Good Writing

It is often said that effective writing does not tell, it shows. Justice Thomas’s recent opinion in District of Columbia v. Wesby, No. 15–1485, slip op. (Jan. 22, 2018), does exactly that.  It puts you at the scene with the officers during those early morning hours.  You can visualize the house, the filth on the floor, the partygoers scampering about the place.  You can hear the commotion and whispers.  You can see the officers standing there questioning two of the partygoers in an effort to track down a woman known only as “Peaches” — “She did not know Peaches’ real name. And Peaches was not there.”  Wesby, slip op. at 3.  Golden.

Unfortunately, most legal writing is nothing like this.  All too often lawyers employ a lazy and mechanical approach to drafting facts.  Fact and background sections of briefs plod along as if the writer could care less about the only person who matters, the reader.  Most legal writing is lawyered up with these common tools of the legal writing trade:

  • Define as many terms as you can to avoid confusing the reader—even where the term is obvious. If you have at least five or more parentheses that begin with “hereinafter” followed by a capitalized term, you’re in the kill zone.
  • Replace names with acronyms wherever possible because everybody likes the challenge of trying to remember what those acronyms stand for.
  • Even if dates are not relevant, include as many as you can to keep readers on their toes, thinking they must remember those dates as having some critical importance to the case.
  • And because every reader loves to solve math problems, never express time in terms of time, stick with dates instead. And always express each date fully by month, day, and year, e.g., “On or about March 1, 2016.  Then, on or about March 3, 2016 ….”  That’s much better than “two days later” or a “few days later.”
  • Follow every number with the same number in parenthesis to avoid any confusion that you meant what you said, e.g., “the sixteen (16) plaintiffs sued the five (5) police officers.”
  • Whenever you can, make your prose as long as possible to show intellectual force. So instead of, “In the living room, the officers found a makeshift strip club.” Wesby, slip op. at 2.  Try, “As the officers entered into the living room area of the house, they observed approximately two (2) to four (4) women who appeared to be in the process of removing their clothes in front of other persons who had either previously provided compensation for such removal or appeared to be prepared to provide compensation for the same.”
  • The terms “same” and “such” move you into the kill zone. Treat the same as such.
  • Try using common and boring language to avoid startling your reader. So instead of, “The officers found more debauchery upstairs.”  Wesby, slip op. at 2.  Try, “The officers happened upon further and additional questionable moral activities when they entered the upstairs floor of the house.”
  • Do not edit. You worked hard on that first draft so make your reader labor just as hard to read it.  Besides, you want to give your reader a feeling of accomplishment upon reaching the end.

If you want to kill good writing, that is how you do it.  Fortunately for those of us trying to understand why the officers had probable cause to arrest the partygoers, the Wesby opinion employs none of these tools.

Editing Your Own Work

It’s after hours. You just finished drafting your brief and you’re feeling pretty good about it.  You’ve read it numerous times, caught a few typos and errors, and cut out some of the fat. But you’ve lived with this thing for too long. You need a fresh pair of eyes on it because we all know that after that many times reading the same thing your brain sees what it expects to see.  And besides, you still need to cut a few paragraphs to comply with the rules. So you wander the halls of your office to find someone to put eyes on this thing. But alas, your colleagues don’t share the same commitment to work (or skill at procrastination) that you do and have long since left for home. Pop quiz, hot shot: What do you do now?

Go back to your office and change the font of your brief to something different than Times New Roman (or whatever you’re using): try Courier or Palatino Linotype.  Then print it out and read it again. Yes, print it. Don’t review on the screen. This is like putting a fresh pair of eyes on the text. It slows down your review, you see things you missed before and end up quickly spotting and cutting the expendable.  Make your revisions, convert back to standard font, good to go.