Appellate Adventures, Chapter 10: “If It Ain’t Clear, It Ain’t There!”

OUR STORY SO FAR.
Rising star trial lawyer Flash Feinberg had just lost a case. Judge Buller (aka the "Mad Bull") granted summary judgment against Flash, rejecting Flash's claim that Topspin Tennis Club had breached its contract with Flash's client (tennis pro Debbie Dropshot) by firing her for flunking a drug test at a tennis tournament.

With the guiding hand of Patty Plato (his former law school professor), Flash had weighed the likely costs and benefits of appealing the Bull's ruling -- and decided to go ahead. So he filed his notice of appeal and his designation of record, then drafted an outline of the arguments in his opening brief. Plato advised him how to draft the procedural facts section of the brief, and is now going through how to draft the substantive statement of facts. [See prior Moskovitz On Appeals columns.]

"So, Professor, what else should I know about drafting the statement of facts?"

"Now we should discuss the one thing that's most fundamental. If it's missing, all the rest of my suggestions are useless."

"What's that?"

"Clarity. If it ain't clear, it ain't there."

"That's pretty obvious, isn't it? All writing should be clear," said Flash.

"Of course," said Plato. "But appeals have a special feature that many brief-writers overlook: When an appellate judge or research attorney picks up your appellant's opening brief, she knows nothing about the case. Absolutely nothing. Most of the time, she never even heard of the case, the parties, or the dispute."

"Really? I thought they must have read something, like a statement of decision or part of the record."

"Only occasionally -- and you can't depend on it."

"Why is that so important?" asked Flash.

"It's the main reason why so many statements of fact read like gibberish. The brief-writer, of course, know the facts well. Maybe the writer was the trial attorney, like you were. The writer has read the record carefully and lived with this case for months, if not years. When you know something that well, it's easy to slip into unconscious assumptions that the reader knows what you're talking about when you discuss the case intimately. It's like when someone tells a stranger a story about her family. She says 'So Bill said....' and the stranger thinks, 'Who the hell is Bill?'"

"And that hurts your chance of winning the appeal?"

"A lot. I've known appellate judges to begin reading an appellant's statement of facts, find it too difficult to understand -- and simply toss it aside and pick up the respondent's brief to find out what happened. And the judge might then think, 'If this guy can't write the Statement of Facts clearly, he probably won't do much better in his Argument, so I'll just skim it.' This is just about the worst thing that can happen to an appellant's attorney. All that work for nothing!"

Flash asked, "I get the problem. What's the solution?"

Plato explained, "This is the key: stand outside the case and view it as an outsider looking in, rather than an insider looking out. Write your brief from that vantage point."

"Can you give me an example?"

"Sure. Imagine that you're trying to describe a recent baseball game to an Englishman. If you pepper your explanation with 'homers,' 'double plays,' and 'strike outs,' you'll get a blank stare. Because he doesn't know the game, he doesn't know the language of the game. Same thing will happen when he tells you how England beat Australia in a test cricket match. Each of you grew up familiar with the argot of your national sport, and each of you unconsciously assumes that the listener knows what he knows. Both of you are wrong. You need to explain the basics. It's the same with an appellate court. You know the special language of the parties, the intricacies of their business, the names of the people and institutions involved, and what they did that led to the lawsuit. You know these things, but put yourself in the shoes of the appellate judge. She probably knows none of them when she picks up your opening brief. She doesn't know the game, so she doesn't know the language of the game."

"To make sure that the judge follows your story, assume that the judge does not know the language and practices used by the witnesses. Doctors, police officers, and other people in particular occupations often do things and use special words that 'outsiders' are not familiar with. It is easy to forget this, especially if you are accustomed to dealing with such witnesses in your practice. If a doctor testified that 'the plaintiff suffered a contusion to the cartilage of the tibia,' translate this into layman's language: 'the plaintiff bruised his knee.' But make sure it's an accurate translation."

Flash said, "You're right. After I've finished a trial, every fact is embedded deep in my brain. They've become part of me, like language. When I start writing an appellate brief, it's hard to remember that my new audience doesn't know any of the things I just take for granted."

Plato said, "Try this, Flash. Every time, step back and tell yourself: "I knew nothing about this topic when I started. The judge will probably know just as little as I did. I need to remember that with every word I write!"

"Any other clarity issues I should watch out for?" asked Flash.

Plato said, "Yes, pronouns. If you're writing about two females, be careful about using the word 'she' or 'her'. If there's even the slightest chance the reader doesn't immediately know which female the pronoun refers to, use her proper name instead. Not as elegant, but in a brief, clarity trumps beauty. Same thing with acronyms. You know what the 'NRTA' means, but the judge has no idea it stands for the National Race Track Association. It might be better to explain what it means the first time you use it, and then call it 'The Association' thereafter. Unless the acronyms are very likely to be familiar to the judges (like 'ABA'), don't use more than one in your brief. It's just too confusing. It's even worse when you use several acronyms that are similar to each other -- like 'NBA' and 'NCA.'

"Thanks, Professor. I guess I need to be pretty careful about clarity."

"Not 'pretty' careful, Flash. Extremely careful. If your brief isn't perfectly clear, all the fancy tips I've been giving you about winning strategies are worthless." 