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:
Appellate Squawk 
Been there, done that. Didn’t get the t-shirt because, well, I’m a PD and shirts cost money.
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I wish I had this advice 3 months ago when I filed my first-ever appellate brief.
On second thought, maybe not.
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We wish you beginner’s luck. . .
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Thanks! I’ll need that luck. Especially if, as Michael says below, reply briefs are most important. With no appellee, thus no appellee’s brief… Well, maybe I could reply to myself 🙂
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Go for it!
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Actually, only the “anonymous pool clerk” would get the free trip to Hawaii.
Seriously, Judge Saxe’s latest piece contains some good advice, and his original piece (however much we make fun of it) does says some things that are true. It’s completely correct that the great majority of appellate arguments in criminal appeals are “exceedingly weak.” That’s not because people doing criminal appeals write bad briefs on purpose, but because every criminal defendant gets a free appeal no matter how meritless his case is, and we have to say SOMETHING in his favor, however idiotic it may be. I’ve said many idiotic things in briefs, because in addition to the pool clerk, the client may read it and perhaps his mom, too. So I try to make it as positive as possible.
But I never write a REPLY brief in a meritless case, because we’re not required to write reply briefs. So I hope the pool clerk is thinking, “Hey, here’s a reply brief. Maybe this case doesn’t suck!” then passes it on to the judges. One of my happiest moments at the First Department was arguing a life-without-parole murder case in 2005 and hearing Judge Sullivan refuting the DA by quoting my reply brief at her (and later writing our winning decision). Since we all have so many UNhappy moments in the First Department, it’s nice when one works out.
So sometimes reply briefs do get read, and I agree with everything about making them as short and snappy as possible. (And the main brief too. Do you REALLY think arguing seventeen different points in an appellate brief is helping your client? The pool clerk is thinking, “They’re talking about so many errors — none of them must be very bad”). I brief two or three issues at the absolute most, and if I KNOW I have a winning issue, I prefer to write a one-point brief. And those briefs win more often than you’d think.
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Yes, we remember Judge Sullivan of olden days. He floored us once by saying our brief was so well-written. As we started to purr, he ruined it by adding, “And of course, so was the People’s brief.”
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I thought the picture of the brief with the free trip etc on it was cute. It made me smile at any rate.
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