Judge Saxe is at it again, handing out more advice about appellate briefwriting. “The reply brief is an important document,” he pronounces. It’s “the last word” that the judges will read. It should consist of “short, declarative, punchy sentences.” Based on “abundant anecdotal information,” he alleges, “many appellate judges have the habit of reading a reply brief first.”
Oh, yeah? Well, after a couple of decades of arguing criminal appeals in his court we have abundant anecdotal information that many appellate judges have the habit of reading nothing but the bench memo cranked out by an anonymous pool clerk who’s read nothing but the People’s brief. Glancing at it for the first time when we stand up for oral argument.
Reply brief? Might as well stick it in a bottle and throw it in the East River.
This is no secret. Judges are advised not to bother reading the “often turgid and prolix briefs” and rely instead on the bench memo, which conveniently includes a pre-argument decision affirming the conviction. “Reversals are disruptive to a system that values predictability and productivity,” Saxe explains, “because reversal often means that the matter must be done over.”
The incredible disruptiveness of asking a court to correct its mistakes!
Even Justice Ginsburg accuses lawyers of filing appeals only because they’re “available and inexpensive,” to the annoyance of “overworked appellate judges.” Most appeals lose, she opines, because the arguments are “exceedingly weak,” trial courts being presumptively infallible. Her advice on raising an appeal? “Perhaps you shouldn’t.”
But suppose you have a case where nobody in their right might would disagree that your client got the worst trial since Sacco and Vanzetti. Your arguments are exceedingly strong and your brief is neither turgid nor prolix. Your reply uses such short, declarative, punchy sentences, Elmore Leonard couldn’t have done better. The People’s brief, as usual, is written by a pompous semiliterate. But you lose anyway, because nobody’s read your brief.
How to get judges to read it? Maybe this will work: