The “winning” brief: good writing has nothing to do with it.

Try googling or westlaw-ing “appellate advocacy” and you’ll find a ton of advice on how to write a winning brief. It’s at least as useful as those tips on how to become a millionaire by selling vitamin pills door to door.

Most briefwriting advice is written by judges and those who seek their approval. It consists mainly of pet peeves:

Judges' pet peeves

Good writing might make life easier for judges and the anonymous clerks who write their decisions, but it has nothing to do with winning. When was the last time you saw a decision like this?

Reverse for bad writing

The reason most briefwriting advice from judges should be ignored is that courts and appellate squawks are at total cross-purposes about what an appeal is. We squawks imagine that appellate review is the equivalent of a mechanic inspecting an airplane engine that’s making funny noises, or a doctor giving a second opinion. In other words, that appellate review means review.  How naive!  In the eyes of the courts, appeals – especially criminal appeals – are nothing but the kvetching of disgruntled jailbirds and sore losers:

Ring bell for service

For example, Justice Ginsburg advises, “My first words of caution to lawyers contemplating an appeal: perhaps you shouldn’t.” Why not? Because “over 80% are affirmed.” And why is that? “Too often because the appellant’s case is exceedingly weak.” She concludes: “Appellate review is more than occasionally sought simply because it is available and inexpensive.” 50 So. Carolina L. Rev. 567 (1999).

So appeals are just something we do for the hell of it? And the odds against winning are a reason not to appeal? (What court has only an 80% affirmance rate?  We’d be thrilled if we won 20% of the time!).

And the reason we lose is that too often our case is exceedingly weak?  Nothing to do with the fact that too often courts make a positive virtue of refusing to correct their mistakes?


Of course not all judge advice should be ignored. Justice Ginsburg quotes Justice Scalia on how to handle hypotheticals at oral argument.  He says you should never answer, “That’s not this case.” Instead, you should say, “That raises an issue quite different from the one I was discussing and, frankly, not sufficiently relevant to the case at hand.” Or alternatively, “Your Honor, that’s a silly question.”

We’ll be sure to try that next time we’re in the Supreme Court.


Posted in Criminal Defense Appeals, Humor, Law & Parody, Satirical cartoons | Tagged , , | 2 Comments

Squawk takes a vacation


See you next month!

Posted in Law & Parody | 4 Comments

What oral argument should look like

        ideal oral argument

Posted in Humor, Law, Law & Parody, Satirical cartoons | Tagged | 2 Comments

The appellate advocacy board game

Appellate process cartoonHone your skills with the fun and educational Appellate Advocacy Board Game ™, now on sale at the Court of Appeals gift shop. Let’s roll the dice and get started!

1. Monday morning find brand new file on your desk.  A 7,000-page trial transcript, how exciting! Your new client was convicted of murder, attempted murder, thinking of murder and hurting a cop’s feelings.  Trial judge was Honorable Curmudgeon “Reversible Error” Bludgeon.  Must be some good, juicy appellate issues here!  Advance 5 squares.

2.  Three-week trial was transcribed by 15 different court reporters, each using own page numbering system.  Every other page from 4,987-6,220 is illegible.  Missing pages 2450-3,672.  Back to square one.

3.  Spot a promising suppression issue.  Plainclothes cops stood under client’s window at 4 a.m. singing “Amazing Grace” until he came storming out in his underwear yelling at them to shut up.  Cops arrested him for Obstructing Government Administration and Public Indecency, searched his apartment and found cell phone containing incriminating evidence In Plain View.  Facts are identical to People v. Rodriguez where Appellate Division held that this violates Fourth Amendment, fruits must be suppressed.  Advance 5 squares.

4.  Read transcript of jury selection.  It’s 3,000 pages long because judge insisted on asking each prospective juror where they were born, where they’ve ever lived, how many children they have, where each child lives, what each one does for a living, what are their favorite t.v. programs, how often they have sex and why. Also, judge started each day by reading aloud 25-page instruction on importance of jury duty.  Eyes glaze over. Lose one turn.

5.  Client’s grandmother ejected from courtroom for shouting BOOYAH!  Egregious violation of constitutional right to public trial, except that defense counsel didn’t object.  Cautiously advance 2 squares.

6.   Case against client based entirely on security videotape showing 9 men on street corner. Client allegedly the one in the white T-shirt. Trial testimony completely unintelligible without videotape.  Call DA’s Office to ask for it, told that ADA in charge of trial exhibits is on maternity leave, they don’t know when she’s coming back and nobody else knows where tape is.  Back 3 squares.

7.  Client’s grandmother phones demanding to know what’s holding up the appeal, as she needs grandson home by Christmas.  Says he’s innocent, FBI was sending radio waves into his brain.  Back 2 squares.

8.  Court of Appeals reverses People v. Rodriguez. Says there’s no constitutional right to obstruct police investigative tactics. Back 6 squares.

9.  Client’s grandmother shows up in your office lugging shopping cart full of newspaper clippings about FBI conspiracy.  Leaves only after extracting promise that you’ll read them.  Miss one turn.

10.  Find note in court file showing that trial lawyer charged client’s family $100,000.  Call up trial lawyer to see if she has videotape.  Expensive trial lawyer says doesn’t have anything,  “I just want to put that trial behind me.” Point out that client doesn’t have that option with sentence of 107 years.  Get into huge fight.  Back 2 squares.

11.  Venting frustration, kick over client’s grandmother’s shopping cart which is blocking your file cabinet.  Newspaper clippings spill out, revealing complete trial transcript and videotape underneath.  Advance 5 squares.

12.  Watch the videotape. It’s two hours long, showing 9 men standing on street corner.  All wearing white T-shirts.  Trial testimony still completely unintelligible.  Go out to the corner bar for 3 o’clock happy hour. Miss 2 turns.

13.  Watch TV news at bar. Headlines: US Attorney reveals FBI was sending radio waves into your client’s brain.  US Supreme Court reverses NY Court of Appeals, unanimously affirms holding of People v. Rodriguez that Fourth Amendment prohibits cops from luring people out of their homes by singing “Amazing Grace” at 4 a.m.  Manhattan District Attorney Vandal concedes your client was wrongfully convicted. Expensive trial lawyer indicted for falsifying CLE credits.  BOOYAH!

14.  Monday morning find brand new file on your desk.  Start new game.




Posted in Criminal Defense Appeals, Humor, Law, Law & Parody, Satirical cartoons | Tagged , , | 5 Comments

Breaking news: King John signs Magna Carta

Signing Magna CartaEver on the cutting edge of the latest developments in the law, the American Bar Association, Expense Account Division, has announced a conference on the Magna Carta (signed by Bad King John at Runnynose in 1215).  Three thousand dollars a head exclusive of hotel and airfare to London may sound a bit steep, but the blurb promises lavish after-hours frolics such as choral evensong in St. Tyburn’s Chapel.  Evensong, as you know from Agatha Christie, is a traditional English orgy where someone is sure to end up mysteriously dead in the vicarage, impaled on a didgeridoo.

Squawk advises that if you have three thousand clams to spare, forget the ABA, buy a cheap ticket to London and hang out On Top of Old Bailey all day for free. Afterwards, pick up a fish & chips takeaway at the Damascus Chip Shop by Paddington Station and a 2-quart can of Foster’s at Ye Olde Football Hooligan Off-License, and hole up in Buckingham Palace Value Bed & Breakfast reading A.P. Herbert’s  “Uncommon Law: Being 66 Misleading Cases.”  This will give you all you need to know about the Great Charter and still leave you with something for the evensong collection plate.

A.P. Herbert (1890-1971), an English lawyer who preferred reforming the law to practicing it, wrote parodies of legal decisions featuring the fearless litigant Albert Haddock and the learned high court judge, Lord Mildew.  Although the decisions’ being published in Punch should have been a clue, American jurists soberly cited them as real English cases.

In “Is Magna Carta Law?” Mr. Haddock appeals his fine of two pounds for violation of the Transport and Irritation of Motorists Act, 1920. His eloquent attorney Sir Rowland Wash argues that the Act must be read in conjunction with the Magna Carta provision that “A freeman shall not be amerced [fined] for a small fault, but after the manner of the fault, and for a great fault after the greatness thereof. . .”

The appeal comes before one Mr. Justice Lugg who finds that no one has actually read the Magna Carta for several centuries and that it’s not what it’s cracked up to be.  He writes:

“Now in private, and even more in public, life there is no doubt that persons are accustomed to speak loosely of Magna Carta as the enduring foundation of what are known as the liberties of the subject, and to assume that the Charter is as potent a measure to-day as at the time of its origin.

“But, if we examine the Great Charter, as I did for the first time in bed this morning, we are led towards the conclusion that, if this is the foundation of the liberties of the subject, then these liberties are not so numerous as is commonly supposed.”

The Honorable Lugg observes that although the Magna Carta guarantees that “To no man will we sell, to no man deny, to no man delay, justice or right,” in fact, “much justice is sold at quite reasonable prices, and that there are still many citizens who can afford to buy the more expensive brands.”  He concludes (with a cite to Lord Mildew) that “so little of the Magna Carta is left, that nothing of the Magna Carta is left,” and fines Mr. Haddock another five pounds.

Let’s hope Mr. Justice Lugg never trains his sights on the Fourth Amendment.


Posted in Civil Liberties, Humor, Law, Law & Parody, Satirical cartoons | Tagged , , | 1 Comment

Six exciting People’s positions with illustrations

Prosecutors don’t have thoughts, ideas or beliefs – they have positions. As in, “It is the People’s position that we don’t have to turn over that information.”

Add spice to your courtroom life by trying out these steamy People’s positions. The judge will never have to fake it again!

It is the People’s position that:

Contortionist The officers’ accounts were perfectly consistent.


StretchingIt is reasonably inferable that. . .


Giant The  defendant has put his own interests above those of Society.


GorillaWe are not required to provide the names of the witnesses.


Pieces The evidence clearly points to the defendant.


People's appealGranting the defendant’s motion to suppress was utterly wrong-headed, frivolous and offensive to human decency.


Posted in Criminal Defense Appeals, Criminal law, Humor, Law, Law & Parody, Satirical cartoons | Tagged , | 2 Comments

Replacing jail with drug (mis)treatment

Drug dog

We happened onto this heartbreaking  photo on the website of the Courthouse Dogs Foundation with the following caption:

“Most treatment court participants struggle in their long recovery from substance abuse and mental health issues. Many participants are also unemployed, homeless and estranged from their families. Waiting for a hearing can take hours and during that time many people suffer from anxiety attacks. Unable to remain in the courtroom, some participants leave and a bench warrant is issued for their arrest. This can make their progress in treatment take even longer.

“It is obvious that many participants are in acute emotional pain while they describe their lack of progress to the judge. It can be a grueling process to stay sober, hold down a job and finish a treatment plan. With all these challenges it can take almost two years to recover and graduate from a treatment court program.”

We think supplying a dog is sort of inadequate.  Why are people in “treatment” kept waiting for hours in the courtroom? Why do they have to “describe their lack of progress to the judge,” who’s not a doctor? How do we know this guy cuffed behind his back wants a dog on his lap?

Is “treatment” really such a fabulous alternative to jail, or like “resettlement” and “special measures,” just another deadly euphemism?

Posted in Civil Liberties, Criminal law | Tagged , | 2 Comments