Brian Keller: The Nuts & Bolts of Appellate Practice
Would you make a good appellate lawyer? That question was asked and answered last week. Brian Keller, a supervisory appellate lawyer in the Department of the Navy, compared his world to that of a mathematician. There are specific skills and qualities that make some lawyers well suited for appellate practice.
This week, Keller expands on the concept of appellate lawyer as mathematician as he dives into the many nuts and bolts of appellate law.
Last week you said that structuring your legal writing like a logic proof—treating appellate law like mathematics—is almost always the easiest sell for appellate judges. Can you expand on that?
It’s true for a pretty clear reason: appellate courts are courts of law. Courts of law follow rules of law. Rules of law are applied to the facts of the case. And expanding or contracting those rules of law depends on other, similar cases. So you are best served in most cases by doing exactly this, and in this order:
- State the indisputable facts that all parties agree on.
- State the indisputable rules that all parties agree on.
- Only now can you be argumentative by introducing the precedent that suggests that the accepted rules should be bent in your direction.
- Finally—and no earlier than this—state your Q.E.D., that is, the conclusion you’ve just earned. Sometimes of course the rules are in dispute. But the point is, delay the argument as far as possible. Narrow the issue to “the battlefield issue.” If you do so, you are much more likely to win your case.
Frequently, the other side engages in “swiss cheese” arguments, or unclear argumentation. “Swiss cheese” briefs facially introduce lots of legal issues for the court to consider, but give no definitive precedent or reasons to hold in their favor.
Unclear arguments, such as stream of consciousness or simply bad legal writing, give the reader no sense of what argument or legal issues are actually being made. These make it harder—painful, in fact—to construct a good appellate brief. If you can adequately answer one of these lemons, judges will immediately gravitate toward your brief.
In the end, there’s nothing more frustrating to read than appellate writing that doesn’t know where it’s going, and evidences that it doesn’t care, or has no sense, of where it stands in the “pantheon” of appellate decision-making. When you argue clearly from presumptions, to rules, to analysis and conclusions, you avoid all these problems.
Is appellate practice a place for lawyers who really want to be novelists?
On its face, there’s a part of that I disagree with. Appellate lawyers are frequently the best writers you’ll meet, simply because they do so much of it. And they depend above all else on that skill.
But because of the “math” component to appellate law, the old adage that “the law kills your creative writing skills” is true in appellate law, to some extent. There’s a precision inherent in appellate law that requires a tremendous amount of buy in to the back-story of appellate law—Supreme Court precedent and schools of jurisprudential thought—without which, you’re very likely not to swim to the top of the heap. You need not subscribe to a particular school, but you’ve got to be aware of the undercurrents, the different strains of thinking. If you aren’t, you won’t survive for long. Appellate law is a specialized field. And that kind of buy-in is, in a sense, death for the good writer. As I understand and vaguely recall my creative writing days, good writing requires some amount of iconoclasm, damn-them-all spirit, and dispensing with prevailing thought.
Plus, structuring your legal writing like a math proof can’t but have a detrimental effect on creative writing. This lets up as you become expert in appellate writing—the gates open a little and creativity creeps back in—but there is a “boot camp” period before you become effective. And it might take a toll on your creativity, unless you can clearly separate your creative writing projects from your legal writing projects.
For me, everybody knows I speak in lists and write emails in numbered paragraphs. I have several points to make. I get in, I get out—just like oral argument. So, for me, it’s a little hard to leave that at the office. But, boy, it sure is efficient when I need to get something done or conveyed.
The two main components of appellate practice are writing and speaking. Is that accurate?
That’s absolutely right. Briefs and oral argument. They’re our two main weapons. The amount of time in a typical day spent on either one of those tasks ebbs and flows depending on whether the courts are in session, what issues the courts are granting for briefing, whether oral argument is being granted, and so on.
At a high level, how do you go about writing a brief?
Generally speaking, if all the issues being granted for briefing are milquetoast, that is, we’ve seen them before, you’ll spend your time combing the record for the facts to plug into the legal tests, and drafting up unobjectionable and not very daring legal briefs. It’s different for government counsel than for defense counsel—defense counsel identify the issues they want to raise and we answer those issues. If the defense briefs are badly written, “swiss cheese” briefs, it’s easier said than done. But, generally, milquetoast defense briefs don’t require a lot of effort to respond to.
If we’re talking cutting-edge issues, either new to the courts we practice in front of or on the cutting edge of Supreme Court and federal circuit precedent, you’re spending days, weeks, hundreds of hours as an office scouring the record, researching these issues, getting out ahead of the defense bar, the blogosphere, and Main Justice.
The Solicitor General has often already staked out a position setting where the United States wants to go on these issues. So we troll the SG’s website to find well-written and well-researched briefs that make our work easy. Other times, I can find oral arguments in the federal circuits or at SCOTUS, the audio files or transcripts, that tip where the appellate benches are going on issues.
Where are you spending the bulk of your time when it comes to cutting-edge issues?
Researching and reading the records so we know the facts backwards and forwards, and know what legal tests to plug those facts into, and know where the law is, what splits exist, and whether our courts’ application of those legal tests is correct or needs finessing. That’s the work of the “line attorney”—writing the initial brief. It’s also the work of supervisory attorneys up the chain who ensure the brief is well written and legally correct, consistent with other positions the United States is taking and has taken in other cases, and is pushing the right legal issues, strategically, alongside other cases we currently have in the hopper. There’s a strategic “battle campaign” aspect at the heart of appellate law more than any other area of the law—it involves leadership and senior appellate counsel who understand the evolving issues in appellate law and are willing to lean and dig in and change the course of rivers, the direction of precedent.
Tell me a bit about oral argument.
Our entire office is involved in the mooting process. As a team we help prepare each other. None of our attorneys come to us as appellate attorneys, so while the Solicitor General may do two moots per case, we do three. It’s 20 or 30 minutes of appellate argument. That might seem like a lot of time, but it’s really not—with a hot bench, you might have only five full minutes to make your points.
How do you make your points with only five minutes?
Much of the skill is in having satisfactory answers so that you don’t raise additional concerns or questions, and you can make your points somewhat unmolested. So we put our counsel though several tough moots, and at each moot, counsel are supposed to have the right answer for the questions that stumped them the previous moot, and be able to pivot back to their argument. It’s a skill, and it needs to be taught in conditions that mirror real oral argument. Often, our questions are tougher or more bizarre than what they’ll actually encounter, but that teaches the “fog of war” aspect of oral argument.
Moots for one oral argument can involve the entire office for a full week. It can be intense. First, lots of attorneys are involved: the moots have a mix of static and new members, so we get fresh insights and commentary on how the attorney’s presentation is developing. Second, the moots require lots of presentation. Ideally, it’s a full day or two spent reading all the relevant parts of the record for each moot, reading the cases cited by both parties, and reading the cases and parts of the record that should have been cited by both parties but weren’t. And Shepardizing and reading new cases and parts of the record after you realize the attorney may be taking the wrong approach in their argument. An effective moot doesn’t harbor potted plants—it requires active participants that try their best to “crush” the mootee. If the attorney being mooted can survive our moots, they can survive an encounter with our highest court.
So writing and oral argument are our two main weapons, but the different activities that take place in our office that enable the writing and oral argument are several. It’s a team effort. When it works, it’s breathtaking, and you read the filed brief or walk out of the argument thinking that this young counsel nailed it.
But the one rule of thumb is that mooting and briefing requires deeply buying into the Socratic method as a tool for getting to the ground truth on issues and to not be afraid to ferociously fight through issues as if it were personal. Judges spend vast amounts of time trying to “get it right” and do justice. Some judges are even worried about the jurisprudential legacy they leave. So with that on the line, you’re going to get some evil eyes from lots of judges in your career: you’d better be able to deal with a moot or brief chopper that approximates that level of devotion to getting it right. If you’d crumple the moment Justice Scalia mocks your position in front of hundreds, appellate law probably isn’t for you. On the other hand, if you make it through a wringer like the one we’ve got, you could go toe to toe with Justice Scalia. (I’ve got a shortlist of the counsel that can do just that, if you need some good clerks, SCOTUS.)
What is it like to do an oral argument in front of a panel of judges?
A good oral argument experience—one that throws you into the mix, with vigorous and challenging questions—is like nothing else. It’s both a rush, and it’s throwing counsel in the deep end, dealing a quick blow to any illusions they had about what appellate law is. But without the foundation of good appellate writing, and unless it’s a hot bench with relevant questions, the oral argument can be counterproductive to a new attorney, in the sense that it feels great to survive an oral argument, but the lack of questions, or a bunch of softball or irrelevant questions, doesn’t help my attorney get her sea legs and understand what this whole “appellate law” thing is all about. But I’m speaking as a supervisor here.
What does it take to write a great brief?
In a word: it takes attention to detail.
- Make sure your brief follows all the format requirements of the court and your office; carefully copy edit to remove any typos or formatting glitches.
- Read every word and check every cite in the other side’s pleading, and respond to every argument the other side raises, even if it’s buried in the brief.
- Read the entire record of trial and pleadings, and not just the portions that the defense brief hits you over the head with—the other side often cherry-picks—and strive to be the honest broker, telling the court both the good and the bad, for both sides.
- Really understand the law, the standard of review, and tests that deal with your issues—and you need to make sure you don’t forget to pay attention to the floodgate arguments such as standing, jurisdiction, invited error, waiver, and so on, which you can only be called “sloppy” by not paying attention to.
To expand on the points above:
As far as format, there should be absolutely nothing that distracts from the majority of judges’ easy reading of the brief, like typos or long-winded sentences or other errors.
Substantively, your brief should be a one-stop shop—provide and cite to all the relevant facts with candor (do not leave some out and do not engage in spin), and be accurate with binding law. Acknowledge when you’re asking the court to move in a direction that may not be clearly required by precedent.
Also be sure to structure your brief such that the headers and subheaders, standing alone, give a Cliff Notes version of your brief, with relevant facts and important cases, such that if the entire text of your brief disappeared, a judge could reconstruct your argument using just those headers. Judges read hundreds of pages a day and they need ease and comfort to facilitate getting what are typically both complex facts and legal issues.
This sounds like a helluva lot.
Writing a great brief isn’t easy, but you want enough credibility and transparency that the court knows exactly where you’re coming from, and they don’t need to go to the defense brief to get the facts, the relevant law, or to check to see if you’ve characterized the defense position accurately. You want the judges to be able to rely completely on your brief; indeed, to have a burning desire to cut and paste sections of your brief into their own opinion.
How can a lawyer improve his or her brief writing?
I’ve always got attorneys bringing in one guide or another for “compelling legal writing” and suggesting we change this or that practice on the basis of this or that expert. To me, the point is not that there’s any one way to do it, but that there’s a divergence of views. You have to appeal to the majority of judges without distracting them from your argument. So for good writing, read widely and write frequently. And study the art of rhetoric. Aristotle’s Rhetoric is a good starting point.
For formats that don’t distract judges, look for help in your local clerk’s office. The Garner-Scalia footnote debate is an example of this. Most judges prefer in-text cites, period. Case closed. Few judges prefer to have their heads bobbing from footnotes to text when trying to decide what weight to give to sentence X in the appellant’s argument. Avoid distraction. In appellate law, the cite gives the sentence context. I may be mildly interested in French law, but if I have to look to your footnote to discover that you’re relying on non-binding law to support your argument, I’m going to be annoyed and think you buried that in a footnote to avoid my realizing the weakness of your argument.
Bottom line: Follow the style guides, copy edit your work with excruciating exactness, and write concisely and with sound rhetoric. Don’t wed yourself to the latest fad in writing guides. Try a few and stick with what works for you. But know that no matter what, appellate writing is not really creative writing—it’s almost a mathematical logic proof—so there are limits to the amount of irrelevant babble you can insert in your brief without pissing off the judges.
Thanks again, Mr. Keller, for showing us the world of appellate law this week and last.
Again, the pleasure is all mine.