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How to write a good appellant brief(二)

2016-03-07 11:11  來源:   糾錯

Learned Hand Throws a Brief

Some compliment: After huffing that the brief was too long and saying he would not read it, Hand threw it over the bench. It landed on counsel table with a thud. The youthful lawyer (and future Justice) sitting there was left with a queasy stomach and a sinking feeling. If you want to avoid being pelted with your own handiwork, consult and follow the rules.

A lawyer writing a brief in the United States Supreme Court need consult only one set of formal rules: the Rules of the Supreme Court of the United States, which became effective in its current form on January 1, 1990. Those rules are clearly written and easily understood, as far as they go. Experienced Supreme Court litigators know, however, that certain Supreme Court practices do not appear anywhere in the rules.

For example: If a brief writer has cited materials in the brief and wants them readily available to the Justices, but those materials cannot be included in the joint appendix (perhaps because they are not part of the record), the Clerk usually will allow copies of the materials to be “lodged” with his office. (The materials must, of course, be served on opposing counsel.) The Oxford Companion to the Supreme Court of the United States (1992) mentions this technique, but only in the book‘s discussion of the Solicitor General — as if the procedure was somehow available only to the government. In fact, it can be used by any litigant who knows to ask the clerk’s office for permission to use it.

Because this useful technique (and several others) are not in the rules, a Supreme Court brief writer ordinarily should consult the leading treatise on the nuts and bolts of Supreme Court practice. Popularly known for decades as “Stern and Gressman,” the book Supreme Court Practice came out in late 1993 in a seventh edition, written by Robert L. Stern, Eugene Gressman, Stephen M. Shapiro, and Kenneth S. Geller.

The lawyer writing a brief for a federal court of appeals must consult two sets of rules. One is the FRAP. Lawyers quickly learn that is not a Boston native‘s term for a milk shake, but is instead an acronym for the Federal Rules of Appellate Procedure, which apply in all federal courts of appeals.

But the FRAP is not enough. A brief writer also must study the “local rules” of the court to which the appeal is being taken. Each court of appeals has authority to supplement or modify the FRAP; idiosyncratic rules abound, setting traps for unwary advocates. For example, the FRAP sets page limits for reply briefs; but the D.C. Circuit regulates brief length by the number of words. The same court also has special procedures and unusual timetables for obtaining leave to file an amicus brief. The Fourth Circuit insists that footnotes in printed briefs meet the same minimum size requirements as text. The Ninth Circuit requires that parties submit “excerpts of record” rather than the “joint appendix” more common in other appellate courts (and discussed in FRAP 30); it directs counsel to use special citation forms for documents in the district court record. The list goes on and on.

State appellate courts also usually have detailed rules. There is so much variation from state to state that it is useless to generalize, other than to repeat the basic point: find, read, and follow the rules.

One rules-related question comes up more than any other: When a case is complicated and adequate briefing will push up against the page limits, how, within the rules, can you squeeze the text you need into the allotted number of pages? Almost all appellate courts specify in their rules the maximum number of pages and the minimum size of margins. But there is considerable variation in the degree to which courts regulate type styles and sizes. Many courts will allow proportional spacing (easy to do on modern word processors) or submission of printed briefs, without imposing a page-limit penalty. These techniques, if permitted by local court rules, enable you to expand the content of a brief by 20 percent or more while still producing an attractive, readable product.

Not all courts will countenance clever format shuffling, however. When a court does have rules governing the format of a brief, obey them or be prepared to face the music. A few years ago, a petitioner seeking review of an NLRB decision in the Seventh Circuit was denied permission to file a 70-page brief. It then resubmitted the same brief “stuff[ed] . . . into 50 pages” by “a variety of typographical techniques” prohibited by the Circuit‘s rules, such as 1-1/2 spacing and type smaller than the required 11 points. “[T]he lawyers, caught with their hands in the cookie jar, . . . apologized and promised not to play the same trick . . . again.” But apologies were not enough. The court forcefully expressed its disapproval of the lawyers’ conduct and imposed a $1000 penalty. You probably don‘t want something like that to happen to you.

Unsubstantiated rumor has it that some United States circuit judges have requisitioned special rules that printers use to measure type sizes and margins, illustrating an amateur detective‘s zeal for catching lawyers who try to squeeze too much material into their briefs. Whether or not that is true, one judge has written for public consumption his reaction to a brief that chisels on the type size: “It tells the judges that the lawyer is the type of sleazeball who is willing to cheat on a small procedural rule and therefore probably will lie about the record or forget to cite controlling authority.” Encountering that attitude could be worse for you than a $1000 fine.

Let us pause for a moment and consider the standard advice for how to meet page limits without disobeying or evading the rules. It is a humorless, spartan maxim: Write short briefs; be so economical and terse that no squeezing is needed. As is often the case with standard advice, these admonitions have much truth to them, but they are not uniformly correct.

Some cases do warrant short briefs. The first case that one of us argued in the Supreme Court was a relatively simple Fourth Amendment matter; the total number of pages in the petitioner‘s brief, respondent’s brief, and reply brief combined was less than the 50 pages the rules allowed for a single party‘s opening brief. But that is unusual. Other cases do warrant the full number of pages allotted by the rules, or (with the permission of the court) even more.

“Write short” is not a panacea. Relatively extended treatment may be necessary because the case involves an especially complex issue or because a number of issues must be presented. In some cases, a court could follow any one of several routes to the same conclusion, and the advocate must present each logical path, not knowing which the court will take. When appellate judges lament — as they frequently do — the unnecessary length of some of the briefs they see, they may not appreciate fully that a lawyer cannot, as a judge can, simply settle on a single true path to the desired result.

Our own advice on how to meet page limits is not merely to be brief. Instead, first write lean prose that makes the necessary points and avoids excessive repetition. Then, if the brief is too long, take advantage of whatever latitude the rules provide (but no more) to vary margins, typefaces, line endings, and so on. Then edit the prose to make it leaner still.

Judges may always grumble about the length of briefs, but, if you stay within the rules and write briefs that tell them what they need to know in economical prose, they usually will come around. After flinging John Marshall Harlan‘s brief at him, Learned Hand eventually voted in favor of Harlan’s client. Hand even called Harlan in to tell him it was “a very good brief.”

So much for format and length. What about substance? Usually the first non-boilerplate item in an appellate brief will be something called the “Questions Presented” or the “Issues Presented” or the “Statement of Issues.” This section can be critical. It is difficult to underestimate the importance of clear, effective framing of the issues: In advocacy, as in life, first impressions last. Unfortunately, many briefs state the issues in a way that either impairs the author‘s credibility or confuses the court’s understanding of what the appeal is about.

Advocacy has a role in drafting the questions presented, but it is a mistake — and a common one — to slant the formulation of the issue too obviously in your own favor. Consider an extreme example: Suppose your case presents a question of whether exigent circumstances entitled police officers to enter your client‘s dwelling without a warrant; the police say they acted to prevent the destruction of drugs that could be used as evidence. In such a case, you should not present a question such as “Whether the Fourth Amendment has been suspended as a result of the ’War on Drugs.‘ ” You may, if the situation warrants, want to suggest to the court that the search was unr easonable and that excessive zeal in the “War on Drugs” explains the government’s behavior (and the trial court‘s ruling condoning that behavior) — but save the point for the argument section. If you start out so contentiously in the question presented, the court will conclude that you are unwilling — or unable — to ever b

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