Strategic reading

MOSKOVITZ ON APPEALS

As I discussed in my last column, there are plenty of books about how to write better. But what about reading? Who writes about reading?

Lawyers probably spend more time reading than writing, so improving that skill might be pretty useful. But I haven't come across any books about how a lawyer might read more effectively.

I did take a speeding-reading course once. But I found that about as useful as Woody Allen did. Asked if he got much out of speed-reading Tolstoy's tome, "War and Peace," he nodded: "Russia. I'm pretty sure it's about Russia."

Since I haven't come across any books discussing how a lawyer should read, let's begin a conversation about this. I'm well acquainted with the work-reading habits of one lawyer -- me -- so I suppose that's where I'll start.

When I'm handling an appeal or writ petition, my reading time is mostly occupied with reading (1) trial court records, (2) authorities (cases, statutes, treatises), and (3) opposing briefs.

The key to effective work-reading is to read strategically -- i.e., with a purpose. When I read novels, my purpose is leisurely enjoyment. When I read at work, however, my purpose is more focused: to advise a client, or to win an appeal or writ. That purpose guides how I read.

This approach makes me more efficient as well as effective. When I read for fun, I'm pretty slow. But when I read with a specific purpose, I cover ground more quickly. When I know what I'm looking for, I can focus on the parts of a case, treatise, or transcript that deals with that, and just skim the rest. I'm not a fast reader, but I'm a pretty fast skimmer.

My job usually begins when a trial lawyer calls and asks me to handle an appeal. I ask him to send me some key documents that get to the guts of the case: the operative complaint, the trial court's statement of decision or other opinion, and the trial briefs or post-trial motions. While I read those, I put myself in the shoes of an appellate judge. I ask myself: Do I see anything that would make me want to reverse? Was the trial court ruling fundamentally unjust in some way? The reversal rate in civil appeals averages only around 18 percent, so there had better be something pretty compelling in the trial court record to make the expense of an appeal worthwhile. Technical legal arguments might provide some hooks, but if that's all we've got, it could be tough to win an appeal. So my reading is very directed: I'm looking for some facts and arguments that would enable me to present a theme of injustice.

If I take the case, I read some more. I might read a treatise like Witkin to educate myself on the general area of law at issue. This sometimes gives me ideas that don't appear in the trial court documents I've read. Then I might read some of the major cases cited in those documents. And I'll certainly read any controlling statutes very carefully, because I know the appellate judges will. They might occasionally dance around a judicial precedent, but they'll be reluctant to play fast and loose with a legislative dictate.

The whole time, I'll be thinking: what will be my theme of injustice? That theme will be the heart of my brief. Once I decide on the theme, I'll be searching everything I read for material that will support that theme. I'll seek language from a treatise, a sentence or paragraph from a case -- anything that helps drill home the message that my client got a raw deal, and the law that supports that message.

Now comes the big job, time wise: reading the record. Once again, I'm searching. Searching the arguments, the rulings, the exhibits, and the testimony for support for my theme. I'm also on the lookout for anything that undercuts my message. My opponent and the court won't overlook it, so I'll need to find a way to deal with it. If I can't, I might need to reconsider whether to go ahead with a particular argument -- or even with the appeal itself. Everything else: I just skim.

Here's an example. Suppose I want to argue that the trial judge erroneously overruled our side's objection to the admissibility of an "addendum" to a contract. To get a reversal, I'll need to show not only that the trial judge erred, but also that the error was "prejudicial" -- i.e., that without this evidence, the verdict would probably have been different. Since we can't get into the jurors' minds directly, we have to do it by inference. If opposing counsel used this evidence in his closing argument, that suggests it influenced the jury. So I scan the portion of the reporter's transcript that includes his closing argument, looking for the word "addendum." When I find it, I stop and read carefully. Strategic reading -- it saves time.

When I read my opponent's brief, once again I put myself in the shoes of the appellate judge. The key question I ask myself is: is there anything in here -- fact or argument -- that would make me want to rule for this party? If there is, I need to rebut it. Some lawyers run away from their opponents' strong points. I run towards them, because that's where the case will be decided. I also look for misstatements about the record or the cases, so I can make my opponent look less credible -- because any loss of credibility might undermine his better arguments. But that's less important than taking on his best arguments directly. I then draft my response (respondent's brief or reply brief). But before I file it, I re-read my opponent's brief to make sure I didn't miss or misunderstand anything.

Any other ideas on how a lawyer might read more efficiently and effectively? Send them to me, and I'll report them in a later column.