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:

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?

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:

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.