Monday, January 26, 2009

Excessive Stage Setting: Boilerplate and Storytelling

One little-remarked practice that sharply divides appellate lawyers is incorporating extensive stage setting in briefs, including boilerplate procedural law and storylike facts. Excessive stage setting is a problem in all the professions. The right amount of background material depends on the reader's knowledge, the optimal background varying with professional development. This moving target may be one cause of excess: the concision expected of a professional differs from the volume rewarded by teachers. The work product practiced when learning is much different from that demanded as professionalism matures.

Briefs filed in both appellate and trial courts usually include excessive stage setting. For a motion for summary judgment, the judge does not ordinarily want an exegesis of the summary judgment statute. The judge knows the procedural law of summary judgments better than you or your ghostwriter, and to presume to educate the judge on routine procedure is either arrogant or pedantic. Yet, many lawyers habitually include a boilerplate summary of summary judgment procedural law. Similarly, in briefing an appeal of a malicious prosecution case, the Court of Appeal will be uninterested in extensive discussion of those facts in the underlying case unnecessary to resolve either of the cases below.

If excessive stage setting distracts and dilutes, why do so many attorneys do it? The dialectic between training and expected performance partly explains it. Another cause, clients' demands and expectations. The attorney's only drive may be winning the case, but his client has collateral motives. What convinces the judge doesn't necessarily please the client, who often doesn't understand the difference between pursuing victory and expressing indignation. The client's interests are rationally opposed to effective writing insofar as he distrusts the attorney, tempting the client to use personal metrics to weigh the brief's effectiveness and the price's justification, and the client's default measure of the attorney's labor is often length. Some clients urge their entire story's telling, thinking their cases deeply sympathetic, capable of moving judges to assist. The client presses against writing a brief likely to win, and attorneys can find that if they tell the client's story, present numerous arguments, and quote an abundance of law, the client will be gratified, even if the case loses. The motives of litigants are often removed from what law contemplates.

An unusually persuasive brief can overcome a client's objections. Sometimes only with the best can you obtain your client's permission to brief effectively.

No comments:

Post a Comment