Issue Proliferation

Death penalty cases now crowding the California Supreme Court docket share two prominent characteristics: each loses and each alleges many reversible errors. Where a Supreme Court hearing is of right, these characteristics are related. When a case is weak, yet your continued existence depends on it, you raise every barely tenable issue. What choice do you have?

Also true, if your case is strong, raising many issues on appeal is a way to lose. Yet many attorneys with strong cases raise weak or trivial issues on appeal. One reason is the superficial logic of appellate process, allowing you to win if the court agrees on any ultimate issue. As follows from elementary probability theory, even small independent increments can substantially raise the probability of winning, where the increments are sufficiently many. The problem with applying this logic is that the issues seldom are close to independent, and a closer analysis would show critical shared assumptions that make almost certain that the less plausible theories depend on the plausible ones. Usually, the author can be reasonably certain that if his strongest theories fail, the weaker ones will, even where the weaker would succeed if the stronger had succeeded.

A future essay should provide an example of the interdependence of most cases' potential issues, but here I want to comment on other causes of issue proliferation. Once attorneys accept the banefulness of prolixity, they may still hunger for issue surfeit, and understanding this appetite's origin can help attorneys accept a reduced issue set. Issue proliferation arises from academic practices, pleading myths, and personal involvement. In law school, academic tests consist of issue-spotting exercises, in which the law student tries to recognize the issues the professor's template credits. Law school tests don’t penalize students for confabulation, and issues the professor credits include those judges would hold frivolous. This training creates lawyers who may be good at spotting issues but bad at evaluating their importance. Law students readily accept the message, because years of schooling condition belief that longer is better. Recall those assignments to write a term paper at least fifteen pages long. Pleading practice, the second source of bad habits, is gripped by the myth that a ponderous complaint intimidates defendants, promoting early settlement. Some lawyers apply to briefs the numerosity-favoring principle the pleading myth conveys. Finally, if the attorney is also the petitioner, rage increases behavioral excitation more than inhibition, leaving the attorney without perspective.

The Great Footnote Debate

Bryan Garner (see http://tinyurl.com/5k4too) may be the foremost exponent of effective legal writing but, as with all geniuses' proposals, some of Garner's are quixotic. Garner wants to revise legal citation and footnoting conventions by placing all citations in footnotes and abolishing content footnotes. The normative legal string-on cite interrupts the flow of text according to Garner, and usurps the stress role, occurring at a sentence's end. Content footnotes serve no legitimate function because if relevant the footnote’s content should integrate with the text, and if insufficiently relevant for textual integration, the parenthetical matter should be extirpated outright, not exiled to marginalia.

But legal citations often contain optional amplification, which the standard citation formats bracket at the end. The amplification succinctly shows how the case supports the author’s claim, quoting the case, paraphrasing it, or stating the holding in fact-specific terms. Optional for citation, the amplification is necessary for understanding, so placing the amplification in a footnote makes reading inefficient. In contrast, experienced attorneys adjust to the textual disruption, mitigating the grounds for Garner's objection to string-on cites.

Content footnotes provide a new bottom-most hierarchical level, where hierarchy is important for Clarity. A hierarchy of headings, numbering at least one and at most four, encases a brief and allows the reader to review the contentions at alternative levels of generality. A content footnote imparts information belonging to a hierarchical level one-step lower than body text. Footnotes should not be numerous, however, because Concision in a legal brief is too important to include subtextual detail. Content footnotes can answer the occasional frivolous argument that would be fatal if the court, improbably, adopts it. Responding to the yet unargued point in a footnote avoids granting the argument undeserved respectability.

Multi-Issue Integration

Clarity comes not just bottom up, by precise delineation, but also top down, combining points into reiteratively broader patterns. Integrating the discussion improves the reader's understanding and retention, but for most legal writers, integration stops at the issue level. A multi-issue brief typically does not significantly integrate issues. Discussing diverse issues in integrated fashion is harder than writing a separately integrated treatment of each issue, but the broadest integration most disposes the reader to a sensed closure.

Many lawyers choose ineffective presentation techniques because the courts' deliberative style misleads. A multi-issue judicial opinion must demonstrate independent resolution of each issue. A party's brief serves a different function and should not be modeled on judicial opinions. Achieving significant issue integration, without forgoing each issue's rigorous treatment, marks a superior brief.