Developing legal theory in routine briefs

Conventional wisdom holds that only difficult or esoteric cases merit briefs which formally develop the law. The routine case, on this view, affords at most the opportunity to adjust the law to facts. Contrary to the conventional wisdom, routine briefs, even when the issues are procedural, often become more persuasive by arguing for original legal conclusions that address the dispute's essence. Lawyers hesitate to develop the law formally in routine cases because they anticipate that the court may reject the original legal analysis and imperil an otherwise solid case, but their objection overstates the difficulties in predicting judicial acceptance of the brief-writer's insights.

Legal insights are apt to clarify a routine procedural case when the facts relevant to the appeal are unusual, causing the relevant decisional law's underelaboration; a routine case can present unusual procedural facts when procedural posture makes appeal unlikely. In the following example of small-scale formal-law development, the summary judgment appealed was unopposed below, and a party shows unusual practical irrationality when it abstains below despite caring enough to appeal. Because of the dearth of case law on unopposed summary-judgment motions, no crisp holdings address what the appellant can argue after failing to file an opposition. I briefed my distinction between attack and rebuttal to arrive at the governing principles:

A defendant's prima facie case, when unopposed, can be attacked but not rebutted on appeal. Rebutting the prima facie case means asserting contrary facts; attacking the prima facie case means undermining the technical adequacy of the declarations, the substantive relevance of their content, or the sufficiency of the undisputed facts.

A distinction clearer than the unelaborated case law provides cleanly applies to the facts:

G argues that the "credibility exception"—which prohibits challenges to undisputed facts based on whether the court should believe the witness's declaration—is invalid, and abrogating the credibility exception, G says, would undermine the declarations supporting summary judgment, since alleged inconsistencies in the Ss' deposition and trial testimony would establish their evidence is incompetent. Disputing the undisputed facts with opposing evidence is rebuttal, not attack. Even without the credibility exception's prohibition barring G from creating disputed facts from mere credibility challenges, G would not have attacked Ss' prima facie case; he would merely have tried to rebut it.

Responding to Buckshot Briefs

Issue proliferation goes virulent to become buckshot briefing when the number of issues compels inadequate development of each. The proliferator of issues thinks he increases his chances of prevailing because he naively disregards the dilution of stronger arguments. The proliferator knows that if he prevails, it will probably be based on the arguments he knows are stronger, but he takes the attitude endemic among lawyers that risk is eliminable. The buckshot briefer, in contrast, knows he has little chance of prevailing and hopes to strike it rich by luck. The buckshot briefer typically can't identify his strongest arguments, since none are developed adequately.

A lawyer, as a rule, will file a buckshot brief only when two conditions are satisfied: he is prosecuting or defending a weak case, and he is unable to analyze the law and facts of the case competently. If the lawyer is defending a strong case, the benefits of developing the strongest arguments are manifest, and the buckshot case will rarely tempt. But even if the case is inherently weak, still the buckshot case is a bad strategy: the lawyer can do better by relying on the strongest arguments, however weak. Judges assuredly know these truisms, and the buckshot briefer will be subject to judicial disdain, to complicate his disputational debility.

The number of buckshot briefs submitted suggests the practice must carry some advantages. One advantage of the buckshot brief is it allows the briefer to offload his research responsibilities to opponent. Instead of researching the arguments to discard those that aren't supportable, the buckshot briefer includes any impressionistic argument and lets his opponent sort out the meritorious. This is the unavoidable burden of responding to a buckshot brief.

Filing a buckshot brief also burdens opponent with conceiving how to organize a coherent response to the disjointed submission. If he succeeds in enticing his opponent to oppose his buckshot brief with a buckshot response, the buckshot briefer will have leveled the field. A lawyer cursed with responding to a buckshot brief must impose a simplifying structure on the buckshot briefer's meanderings. He should structure the response to bring out the buckshot character of the brief without expressly having to dwell on it; the response should expose the implausible validity of the buckshot brief's simultaneous contentions. In responding to a recent buckshot brief, I introduced my structuring of the briefer's arguments this way:

G presents a buckshot case rhetorically emphasizing his right to equal protection of the law. He covers all bases: the court should have granted the continuance; failing granting the continuance, the judge should have submitted to G's peremptory challenge; and failing to prevail on his jurisdictional challenge to the court, G should have prevailed on the merits.

When possible, the best organization of arguments targets common assumptions of the buckshot arguments, but often arguments aren't merely presented in buckshot fashion; they really are disjointed. Deal with disjointed arguments by organizing the response around the soundest arguments. The responder shouldn't fall to the temptation of avoiding the strongest arguments because the buckshot briefer doesn't emphasize them.

Black-letter briefs

The overstatement that incurs courts' distrust doesn't always bespeak inferior writing skills. Legal confusion or misdirection about rules in relation to public policy usually nourishes overstatement and is sometimes its direct cause. Many attorneys mistake a phase of legal argument—applying rules to facts—for the entirety. The resulting lopsided analysis ignores the adjustment of rules to public policy in an integrated legal system, where individual rules have only limited autonomy. Oliver Wendell Holmes Jr., author of the most memorable statement favoring interpreting plain legislative texts, as opposed to legislators' subjective intents—"We do not inquire what the legislature meant; we ask only what the statute means"—did not, like latter-day textualists, reject legislators' broad purposes, only their narrow intents. Holmes describes the decisive role of policy:

The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient to the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis. (Holmes, The Common Law 35-36 (1881) [quoted by Aldisert, infra, at p. 4)].

Since rules must be mutually reconcilable, a change in how courts conceive one rule influences how they construe and apply even distant others. Changing a law pulls public policy in its direction and also leaves an altered balance of policy issues to other rules' regulation. The rule-based conception of law leads attorneys to ignore the opposing interests and think about their cases in ways that promote overstatement. If cases were won simply by bringing facts under the accepted rules, then if you were right, you'd be clearly right, as attorneys so often declare, because once the facts are characterized ordinary logic dictates whether they satisfy the rules.

In a to-be-published essay (download) Judicial Declaration of Public Policy, Journal of Appellate Practice & Process, Vol. 10 (forthcoming, Spring 2010) Ruggero J. Aldisert, Senior Judge, Third Circuit Court of Appeals, opines that the majority of federal-court appellate briefs are made useless by their failure to help the court resolve the issues. (Hat tip to Prof. Lawrence B. Solum, Legal Theory Blog.)

Too often, briefs simply recite the various leading cases and attempt to bring the particular dispute within the boundaries of the decisions thought to be controlling. They address too briefly, if at all, the interests implicated in the decision. Such briefs are of little aid to the court. (Aldisert, supra, at p. 16.)

Many cases—particularly in torts, tax law, family law, and constitutional law—aren't resolved by rules alone but require inferences from the relationship between rules and the vying interests viewed through a public-policy lens. Most appellate cases feature conflicting interests, and a brief can persuade only if it discusses them. All relevant "private, social, public, and governmental interests" must be "not only evaluated, but compared, accepted, rejected, tailored, adjusted and, if necessary, subjected to judicial compromise." (Id., at p. 13.) To persuade the court with a comprehensive analysis, the writer must "know not only those facts which bear on direct controversy, but know all the facts and laws that surround." (Justice Brandeis, quoted id., at p. 16.) Broadly understanding the issues' periphery also discourages overstatement and other oversimplification.

My blog Juridical Coherence has started a series on statutory interpretation, including public policy's role. (http://tinyurl.com/d8pos9)

Adverse Information

An opening brief should deal forthrightly and thoroughly with obvious objections. The court will think about undispelled objections instead of thinking about your arguments. Refuting opposing arguments early also improves an advocate’s credibility. Judges commonly complain that briefs fail to deal adequately with objections and other adverse material even after presentation by the other side. One reason is that a widely accepted perspective sometimes called the sponsorship theory holds that preempting an opponent by raising potential objections weakens persuasion. Sponsorship theory flourishes among trial attorneys, who apply it to juries rather than judges, to maintain that the fact finder will magnify any concessions based on their source.

Psychological theories can justify both sponsorship theory and its denial, sometimes called the scholarly approach, when applied to brief writing. Sponsorship theory invokes the recipient’s expectation that the advocate will present client-favorable arguments. Heightened expectations, a comparison-level concept — familiar to all who have suffered through Presidential-campaign coverage — cause adverse information to register as more adverse than when opposing counsel presents the same information. The prediction favoring preemptive presentation of adverse material comes from the theory of cognitive dissonance, which describes listeners as changing their beliefs and perceptions toward pragmatic consistency. Cognitive dissonance theory predicts judge or jury will understand adverse information the advocate supplies as less adverse because an advocate’s presentation of adverse information is inconsistent with recipient expectations. Comparison-level theory and cognitive dissonance theory predict opposite effects, both based on inconsistency between source and message. Which is stronger of these tendencies, triggered in recipients when an advocate offers adverse information preemptively? If the advocate is sufficiently skilled, preemption wins because the advocate can exploit cognitive dissonance but can only resist a disadvantageous comparison level.

Antipreemptivists sometimes clothe their view in the ethical cannon of zealous advocacy, but antipreemptivist motivation often comes from some advocates’ finding no merit in positions they oppose. Sometimes immersion in a case makes a client’s contentions appear self-evident, but trial attorneys also cultivate their absolute conviction favoring their client, because their self-certainty helps convey their conviction to naïve juries. Persuasive discourse benefits from different attitudes, depending on whether the recipient is judge or jury and whether the medium is speech or writing. Attorneys adapted to persuade juries do particularly well filing ghostwritten briefs when they communicate with judges in writing.

Issue Proliferation Exemplified

Gilmore v. Ashcroft is a high profile civil-liberties case, challenging parts of the Patriot Act's surveillance system. John Gilmore refused to submit to a search, required in the alternative to showing personal identification. What particularly disturbed Gilmore was the secrecy surrounding the legal requirements. Only unpublished Government directives authorized the ID requirement and its alternative.

Gilmore's brief to the 9th Circuit begins by stating these issues:

1. Does requiring a passenger to show a government-issued proof of identity in order to fly violate that passenger's right to travel?
2. Does requiring a passenger to show ID in order to fly violate that passenger's rights of assembly and redress?
3. Does requiring a passenger to show ID in order to fly violate that passenger's rights to be free from unseasonable searches and seizures?
4. Does forcing a passenger to choose between producing ID and being subjected to a more extensive search in order to travel violate the doctrine of unconstitutional conditions?
5. Does the secrecy of the Government's requirement that a passenger show ID in order to fly violate that passenger's right to due process?
6. Does Mr. Gilmore have standing to address the reasons for the ID requirement?
7. Does the District Court have jurisdiction to hear challenges to actions of the Transportation Security Administration and the Federal Aviation Administration as applied?
8. Did the District Court err in denying Mr. Gilmore's October 8, 2003 motion for request for judicial notice?
9. Did the District Court err in denying Mr. Gilmore leave to amend his complaint?

Although these issues may appear independent, the state of the law ties them tightly together. (See Issue Proliferation, ¶ 2.") Deprivation of a single mode of transportation, settled law holds, does not violate any fundamental rights. Only impermissible secret regulation of Gilmore's access to transportation could have infringed Gilmore's right to travel. Settled law also holds that if the subject is not punished for refusing a voluntary search, the 4th Amendment does not prohibit it. Gilmore's right to be free of unreasonable search was not, consequently, infringed by the contingency between acquiescing to the search and boarding a plane. If Gilmore's right to be free of search was implicated, it was because the search, based on secret law, was conducted without due process. Gilmore should have confined his brief to the single substantive issue that secret laws violate due process, because he could prevail on the other claims only by prevailing against secrecy. Gilmore would receive no additional relief, moreover, for enumerating additional bases sustaining the same rights.

Gilmore's approach to the procedural issues is also mistaken, for a different reason, as Gilmore should have ignored most of the substantive issues, but he had to face the procedural issues. He should have de-emphasized them, however, treating the procedural issues combined as a single sub-issue. The Government raised the procedural issues as obstacles to plaintiff Gilmore's substantive litigation. To the extent the court focuses on the procedural issues, the plaintiff, whom these issues bar, is on the road to losing.

The survival of secret federal laws is hard to imagine, when able counsel attacks them in a deep brief, comprehensive because limited to the single real issue. Where Gilmore raised nine issues on appeal, I would have raised one.

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.

Emotionalization

Using emotional appeals in briefs generates much emotion, both in those discussing that subject and in their judicial audience. The judge's emotional reaction, unfortunately, will not be the one you want. MoneyLaw locates emotionalization’s counter-persuasiveness in an implied request for judicial partiality, a request the court must refuse and what is worse, a pressure it must resist. (See http://tinyurl.com/263ntg and http://tinyurl.com/yqrsuv; see also http://tinyurl.com/2zns7y)

The goals of the target audience control its response to attempted persuasion, and any judicial system must impose two reciprocal demands on its officers: avoiding reversal and managing caseload. (See http://tinyurl.com/ytkwxt) A judge's susceptibility to emotional influence increases his cases-reversed, because procedure sanitizes irrelevant or grossly excessive emotionalism from the record before it reaches the appellate court. To avoid reversal, the judge must invest mental energy resisting untoward persuasion , energy subtracted from rehearsing your arguments. Insofar as the irrelevant matter gets in the judge's way, it will frustrate and make him angry — with you or your client, not the character you failed to assassinate.

Some attorneys will not relinquish hope of applying our most powerful persuasive methods to legal argument. (See for example http://tinyurl.com/2huwdh) Exclusion from 1st Amendment protection marks libel's persuasive power, and under the litigation privilege, attorneys can incorporate allegations otherwise actionable. But the immensity of the task you impose on the judge to remain impartial stands in direct proportion to the effort he must expend to avoid your undue influence, effort subtracted from understanding and rehearsing your brief, a burden diminishing judicial sympathy.

Legal-writing and legal-process courses, typically teaching "Legal Realist" doctrine — holding that courts decide based on the equities and accept arguments corroborating their moralism —foster naïve methods of persuasion. Judges differ on questions of moral equity, subjecting moralistic decisions to reversal, except where the issues elicit no conflicting moral intuitions. Even then, emotional amplification defeats persuasion.

Beware of the ghostwriter who stridently asserts your client's rectitude or the opponent-party's nefariousness. Shrillness will not conceal an illicit cry for help.