Tuesday, July 7, 2009

Pinball wizards and archers: A contrast between trial and appellate work

I offered a pinball analogy for trial work in another blog, where I claimed good trial lawyers must sometimes push to the limit of the court's tolerance, just as a pinball wizard seems to risk tilting. Pinball and trial work share a structure that creates incentives for limit-seeking performance: both measure sanctionability and performance by standards independent of one another. If the pinball player comes close to tilting, his near tilts don't subtract points from his score. Similarly, the judge determines whether a trial lawyer has committed misconduct, whereas the jury ordinarily determines the outcome, and the judge's displeasure doesn't automatically affect the jurors' opinion.

One additional way appellate work differs from trial work, then, is that the same decider evaluates appellate counsel's conduct and the case's strength using overlapping standards. Limit seeking would undermine the appellate counsel's purpose because it would decrease his moral credibility. In contrast to the limit-seeking performance of the trial lawyer, the appellate lawyer's performance is ideal seeking. The appellate lawyer doesn't win by barely avoiding misconduct but by impressing the court with integrity, knowledge, style, and rationality. The appellate lawyer may be likened to an archer; he obtains his goals by approaching an ideal of perfection, not by pressing to the limit of tolerable deviance.

Many typical legal-writing errors come from applying a limit-seeking model to an ideal-seeking task. (Errors in trial work often seem to derive from the reverse confusion, but that isn't our subject.) Emotionalization is often a limit-seeking tactic, as are character attacks on opposing counsel. Even excessive length comes from a limit-seeking mental set. Law and motion attorneys confuse the standards more often than appellate lawyers because law and motion attorneys are often trial attorneys, but inherent confusion about the nature of law-and-motion work complicates matters further. Law-and-motion work may seem to involve two separate deciders, the trial court deciding the motion and the appellate court applying procedural standards. In most courts, the judges have internalized the court hierarchy enough that the appellate court and the trial court aren't roughly independent. In courts insulated from appellate review, limit-seeking performances sometimes pay off.

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