File under: Appellate Writing Tips

The Opening Brief points to a law review article by Kenneth Chestek entitled The Plot Thickens:  The Appellate Brief as Story.  It says that lawyers should use appellate briefs to “tell a story.”  I have to admit that I am skeptical.   Keeping reading for my thoughts.

I agree with him about a number of things. 

1. IRAC is overly mechanical.
2. You should know “the law.” 
3. If you need to set out a factual pattern or identify the characters, you should do it well.  Like a fiction writer.

Here is why I am skeptical:

1. Sometimes being exciting isn’t a good tactic.  Judges have seen excitement before.  In fact, every case has some degree of excitement, sympathy, or all that other crap.
2. Dryness often is a good thing.  Being overly dry and overusing the passive voice can make an opponent’s argument seem week.  Likewise, sometimes the court needs to be informed – dryly – of what the dispute is.
3. The reason that law schools teach IRAC is that high schools and undergraduate institutions have taught people not to use it, or at least rewarded its non-use.  So, IRAC is the best that law schools think that they can do.
4. Appellate judges don’t like being treated like juries.  Therefore, if you are going to do this, you have to be sneaky about it.
5. Appellate judges “say” they want all kinds of argument.  They are full of it.  Unless they are giving a very specific piece of advice (such as “number the pages in an appendix”), don’t take what they seriously.  There is nothing more egotistical than a judge that gives a talk about how best to “please” him.  Instead, lawyers need to figure out what specific judges want, knowing that an appellate judge (just like a trial judge, and all the lawyers) is a player in a gigantic justice machine.  So-called “empirical” justifications, such as those found in footnote 53 (In a recent
6. survey of 355 federal court judges (both trial and appellate courts) 74% of the respondents said it was “essential or very important for advocates to put their strongest arguments first.”) don’t help matters, because there is no way to prove or disprove that the judges would rule the other way if the strongest argument came second.

I previous blogged about pieces of legal advice here.