Category Archives: Writing

Advice for appellate lawyers doing their first Third Circuit case

If you’re an experienced appeals practitioner with little or no Third Circuit experience, and now you’ve got a Third Circuit appeal, this post is for you. You’ll likely find that Third Circuit practice holds no huge surprises, but every court has its own rules, practices, and norms.

If you’ve done your share of appeals but you’re new to the Third Circuit, here are nine things you should know:

  1. Don’t count on getting oral argument. The Third Circuit holds the fewest oral arguments of any federal circuit in the country — 20% fewer in 2016 than the next lowest circuit. The Second Circuit holds argument in almost a third of its cases, the DC Circuit in almost half, but the Third Circuit grants argument less than 10% of the time. Unless your case is extraordinary, you’d be foolish to bank on the court granting oral argument, so if you’ve got something to say, say it in your brief(s).
  2. You’ll find out who’s on your panel after the briefs are submitted and roughly two weeks before oral argument or submission on the briefs. The three panel judges are identified in the letter from the clerk you receive on ECF, captioned either “Submit Notice” or “Argue Notification,” notifying you whether the panel granted argument (a decision made by the judges not staff counsel and made after briefing).
  3. Don’t be confused by the letter you get from the clerk (also after the briefs are in, but before the letter in #2, this one ECF-captioned “Calendared_Merits”) asking if you’re available for argument on a particular date. This letter is sent out by the clerk automatically, meaning it does not imply that the court will grant oral argument in your case.
  4. The Third Circuit is an emphatically centrist court. Different folks would draw these lines in different places, but it wouldn’t be crazy to classify the active Third Circuit judges as 1 liberal, 2 conservatives, and 8 moderates. (Here’s one perspective.) So if your case is ideologically charged, know that the deciding vote on your panel will quite likely be a centrist.
  5. Steer well clear of attacks on the court below or the other side. This is true in most any appellate court, but especially so here. The Third Circuit’s patience for sniping and insinuations of bad faith is low. Your devastating verbal jabs are way more dangerous to you than your intended target.
  6. Follow all the rules. The court has come down hard recently on lawyers who didn’t, including lawyers with little Third Circuit experience. Howard Bashman has warned that these cases “may indicate that the Third Circuit’s previous forgiving approach toward errors affecting form but not substance has come to an end.” (Links to the federal appellate rules and the local rules are on Third Circuit’s website and also on the sidebar of this blog.)
  7. The court has standing orders discouraging requests for extensions of time or brief-length, and they mean it.
  8. If you do get oral argument, be aware of two ways the Third Circuit differs from other circuits. First, the court can be loosey-goosey with argument time limits. Don’t be shocked if the panel keeps peppering you with questions long after your red light went on. Second, the court now posts video of a few arguments on its website, which you may find helpful for getting a feel for what to expect beforehand, or impressing your mother afterwards.
  9. For more comprehensive coverage of circuit practice, there’s a Third Circuit practice manual that was just updated this year. There’s also a shorter (and free) online practice guide put out by the circuit bar association. Both are outstanding. And of course the circuit clerk’s office is indispensable.

Last thought: consider consulting with a lawyer who practices in the Third Circuit regularly. One place to start is the circuit bar association’s board. I’m on it, and I consult a lot with lawyers doing Third Circuit appeals, but others do too. Whether you need to figure out procedure, understand the court’s dynamics, or moot your argument, sometimes there’s no substitute for local expertise.

 

BONUS UPDATE

Here’s how to pronounce judges’ last names that sometimes get mangled:

  • Chagares — shuh GARR iss (rhymes with ‘the Harris,’ not ‘the Norris’)
  • Vanaskie — vuh NASS key
  • Scirica — suh RICK uh
  • Cowen — first syllable rhymes with ‘now,’ not ‘go’
  • Nygaard — NYE gard (first syllable rhymes with ‘hi’)

 

 

 

 

How to make your briefs easier for judges to read

Lawyers are not always rational. We buy $600 shoes to wear for oral argument, to stand hidden from the navel down by a lectern and 10 yards from the nearest Article III personage, but we file briefs that, by the standards of professional typography, look like dogshit.

Here are five ways to make your briefs easier for judges to read:

  1. No all-caps claim headings. SORRY, BUT YOUR FOUR-LINE-LONG ALL-CAPS CLAIM HEADINGS ARE VIRTUALLY UNREADABLE. A JUDGE’S ATTENTION IS YOUR MOST PRECIOUS RESOURCE, DON’T FRITTER IT AWAY BY MAKING THEM SLOG THROUGH NARCOLEPSY-INDUCING HEADINGS JUST BECAUSE THAT’S HOW YOU’VE ALWAYS DONE IT. And Oh By The Way Those Long Title-Caps Headings Are No Picnic To Read, Either. Just use regular capitalization for your claim headings, boldfaced in the argument section and unbolded in the table of contents. Save all-caps for your section headings (statement of facts, argument, etc.) and furious emails.
  2. No Courier. Don’t use a typewriter-style font, they’re harder to read. Seen any books, magazines, or newspapers set in Courier lately? Me neither. Font choice matters. Use a proportionally spaced serif font, and bonus points if you pick one besides Times New Roman.
  3. Wider side margins. FRAP 32 requires margins of “at least one inch,” not ‘exactly one inch.’ Bigger margins equal shorter lines and more white space, and both make reading easier. Sure it will add more pages, but the word count is what matters. Use 1.2″ to 1.5″ side margins instead.
  4. Avoid substantive footnotes. Lots of judges — including Third Circuit judges — read briefs on tablets instead of on paper. For tablet readers, jumping back and forth between the text and footnotes is extra tedious. They’ll find you extra tedious if you keep sticking your points in footnotes.
  5. Use italics instead of underlining. Underlining citations or for emphasis is a relic of the typewriter age. Underlining interferes with easy reading by making it harder for your eye to recognize lowercase letters like y and p.

There’s a lot more to professional typography than these five points — check out Matthew Butterick’s stupendous book Typography for Lawyers (2d ed.), or the Seventh Circuit’s useful little online typography guide. But getting the basics right is a fine start.

Making your brief less of a chore for busy judges to read will do more for your client’s chances, and your own image, than those Bruno Maglis ever will.

Senator Menendez’s cert petition unloads on the Third Circuit

After the Third Circuit in July denied NJ Senator Robert Menendez’s effort to toss the criminal prosecution against him, it was hardly a surprise that Menendez would file a petition for certiorari.

But the tone of the petition the Senator filed this week (h/t How Appealing) is an eyebrow-raiser. It describes the Third Circuit’s reasoning as “nonsensical,” “an affront,” “[u]nsurprisingly … in conflict with this Court’s precedents,” “mak[ing] no sense,” “completely illogical,” “utterly perverse,” containing a “fundamental flaw” that is “all the more obvious,” “misguided,” and, finally, “inexcusable.”

Now, the petition was filed by top-caliber advocates — Abbe Lowell is counsel of record, Paul Clement and Viet Dinh also signed. And maybe cert will be granted.

But I’m mighty skeptical that dumping this avalanche of contemptuous adjectives and adverbs on the Third Circuit was the best way to go.

 

 

A legal-writing resource

I recently came across this page collecting a series of articles from the ABA’s Litigation magazine by George Gopen. Their subject is legal writing.

In the first article in the series, Gopen writes:

The bottom-line question about writing quality is simply this: Did the reader get delivery of what the writer was intending to send? If the answer is “yes,” the writing was good enough; if it is “no,” the writing was not good enough. And it matters little how impressive or dazzling the writing seemed to be along the way.

To get control of writing, litigators must understand as much as they can about how the reader goes about the act of reading. It is insufficient to compose a sentence that is capable of being interpreted in the way that best serves your case. Instead you must compose it so the odds are as high as possible that an intelligent reader will be led to interpret it in the way you intended. We have all been taught writing according to what the writer should and should not do. The perspective should be shifted to consider what readers actually do. That will be the task of this series of articles.

Gopen’s top two points:

  1. readers have an easier time recognizing your sentence’s key points when they appear to come right before periods, colons, and semicolons, and
  2. readers expect your key sentence’s points to come in the main clause, so you should normally avoid writing, “The Court held that ….”

Provocative and useful, even if (like me) you don’t buy into everything he suggests.

H/T Raymond P. Ward at the (new) legal writer.

Are Third Circuit judges reading briefs on tablets?

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In other circuits, judges have made it known that they read briefs on tablets or iPads. For example, a majority of Fifth Circuit judges reportedly read briefs on iPads. Second Circuit Judge Wesley has explained that he does, too.

It is helpful for judges that lawyers know whether they are reading briefs using tablets, as the Columbia Business Law Review has explained:

The words themselves—that is, the content—may well be the same, but the style should differ. Lawyers who care about communicating forcefully and clearly should seek to perfect style and typography in addition to substance. The rules of typography are simply different for a screen than for print.

* * *

A brief written to be read on an iPad should differ from one written for text in three main ways: it should use fewer footnotes, should use a different font, and should avoid confusing hierarchical organization.

Also see this Lawyerist.com post, “5 Tips for Writing Briefs for Tablets.”

So, are Third Circuit judges reading briefs on tablets instead of on paper? I’d love to know. I recently tried to find out from the Circuit Executive’s office. I was told that not all judges read briefs on paper, but beyond that they could not say.

I’ll be looking for chances to find out more. In the meantime, if anyone has insight about it, please post in comments or contact me directly.

For the punctuation enthusiasts

‘Holy Writ,’ a glorious article by Mary Norris in the current New Yorker, is about commas, not Third Circuit advocacy.

But if you’re the sort who reads an appellate blog, there’s a good chance you’ll really enjoy it.

If an article is not enough to scratch your punctuation itch, Norris has a book due out in April, Between You & Me: Confessions of a Comma Queen. And if April is too long, I recommend Noah Lukeman’s A Dash of Style.

A review of Federal Appellate Procedure Manual, by Alex Kozinski & John K. Rabiej

FAPM cover

Alex Kozinski, the colorful Ninth Circuit judge, has co-authored a new book for appeals weenies, the Federal Appellate Procedure Manual (Juris 2014). His co-author is John K. Rabiej, the longtime head staffer to the federal rules committees.

Inside FAPM you’ll find three sections:

  1. a 50-page mini-primer on jurisdiction, briskly covering topics like standards of review, the final-decision rule, and interlocutory appeals;
  2. 150 pages on the FRAP rules — this is the heart of the book — and
  3. 18 pages of forms and tables.

When I first got it, I thought, “Neat book. But who’s it for?” If you want to know what a FRAP rule says, just read the rule; if you want to know how its been interpreted, read the cases. FAPM sprinkles in some case-cite footnotes, but it is nothing like a treatise. I never bother reading headnotes or syllabi, and I thought FAPM might be the same flavor of useless.

But then it saved my butt.

See, I’ve always been too focused on substance lazy to get clear on how Rule 26‘s deadline-computing works. You get three extra days, but sometimes you don’t … it’s easy to grasp when you focus on it, but I never had. Anyway, in my case, the court gave me an extension until December 1, and I was thinking I had until December 4. Then on November 29, I read FAPM’s blurb on Rule 26, which said, “The Rule does not apply to a date certain fixed by the court in an order to act, e.g., file no later than February 1.”

(1)  “Oh, crap.”

(2) “Maybe this book is more useful than I thought.”

Now, maybe you’re reading this thinking, “huh, I had no idea Stiegler was that ignorant.” Fair enough. But, see, that just happened to be my blindspot — you may have blindspots of your own. A short little book like this can help you spot them. If it saves your tuckus just once, it pays for itself.

fapm inside

Click to enlarge.

In the end, that’s where I come down on FAPM. It’s not the most useful book on my shelf. I wish it had better coverage beyond FRAP on nuts-and-bolts things that matter to appellate practitioners, like how panels are composed or what staff counsel does. (It does discuss a few potential rules changes the committee has discussed and compares circuit practice in a few areas.) You’d be nuts to buy it instead of the Third Circuit Bar Association’s PBI’s indispensable Third Circuit Appellate Practice Manual [see Peter Goldberger’s comment below], or Mayer Brown’s pricier Federal Appellate Practice.

But it saved my butt, and it might save yours.

 

If you want to buy a copy, you can get it from the publisher with free shipping at this link, and the coupon code FAPM25 gets you 25% off the $95 list price.

Disclosure: I have no ties to the authors or the publisher. I got the book free from the publisher — they asked me to do a review and to include their link.

 

 

A closer look at Bashman’s winning brief

One of my main reasons for starting this blog was to spotlight high-quality appellate advocacy. My motives are both selfish (I improve my own skills by learning from the best, and I learn by writing about it) and not (bringing attention to top-shelf appellate lawyering helps raise the standard of CA3 practice overall). My posts about appellate advocacy have been among my all-time most-read posts: this look at Orin Kerr’s oral argument in the Weev appeal and this post on the power of clear writing, to name two.

Today I want to take a closer look at Howard Bashman’s opening brief in Schmidt v. Skolas, a CA3 appeal he won last week (link to the brief in PDF here, CA3 opinion here). Schmidt arose as a shareholder suit against a drug company alleging below-market sale of assets. The district court dismissed the suit as untimely, and Bashman entered the case on appeal.

Four things stand out that Bashman nailed:

Focus. The best thing this brief does — and the hardest — is pare the appeal down to its core. Bashman chooses one, limited issue: premature statute-of-limitations dismissal. He refuses to clutter his brief and weaken his position by swatting at all the alternative grounds for affirmance; I’m sure he knew they were coming, but he correctly judged that the panel would decline to reach them. He cites his key case in the argument summary’s first sentence. He comes in at 7,560 words, just over half the limit. This brief isn’t a slap-fight, it’s a knockout punch.

Clean writing. Bashman writes not to impress, but to persuade. The sentences are clear on the first reading. Here’s an example from the argument summary. The first sentence explains that suits may be dismissed under 12(b)(6) on statute-of-limitations grounds only in the rarest of cases. Second sentence:

The district court thought that this was such a case, but the district court was wrong — not only on substance, when rejecting plaintiff’s proper invocation of the discovery rule, but also procedurally in relying on materials outside of plaintiff’s amended complaint to hold all claims time-barred.

The single-syllable words in the opening clause are strong and clear. The parts that are hardest to understand are in the second half of the sentence, where the reader can digest them more easily, and they are prefaced with quick summarizing transitions (“not only on substance,” “but also procedurally”).

Clarity like that is no accident. Here’s how a less careful writer might say the same thing:

Because the district court in this case improperly rejected plaintiff’s invocation of the discovery rule, and because it also relied on materials outside of plaintiff’s amended complaint to hold all claims time-barred, this was not one of the extraordinary cases where dismissal at the 12(b)(6) stage was warranted, and the district court’s ruling to the contrary plainly was substantive and procedural error requiring reversal.

Clarity is power.

Confident citing. Bashman writes with authority because he leans less on authority. Lesser advocates fill their briefs with quotes and end every sentence with a citation or three. Bashman hammers the key cases, but his arguments are his own.

Consider his substantive, discovery-rule argument. The first 7 pages contain only 3 case cites.  Eight of the first 11 paragraphs are cite-free. Block quotes, record quotes, or footnotes? Zero. That’s radically different from most briefs. I’ve written love notes with more F.3d cites.

Good typography. Bashman didn’t just build a strong house, he gave it a nice coat of paint, too. His brief looks professional because he avoids the most common typography errors: over-capitalization, underlining, two spaces between sentences, boring Times New Roman font. He even gets picky stuff right like using en-dashes instead of hyphens for page ranges. Looks to me like he’s read Butterick.

Yesterday I asked which has a bigger impact on winning, good lawyers or good issues. Reversal in Schmidt was no sure thing, and in lesser hands the outcome may well have been different.

Update:  here is a link to the opening brief:  Schmidt opening brief. And here is Bashman’s reply brief: Schmidt reply.

Appellate lawyering, and darling-murder

800px-Jakub_Schikaneder_-_Murder_in_the_House

Murder in the House, by Jakub Schikaneder (public domain / Wikimedia Commons)

Today, some thoughts about appellate advocacy. Specifically, about the difference between Great Lawyers and great lawyering.

There are lots of brutally bad federal appellate briefs out there, so it’s a relief to read a brief by a Great Lawyer. It’s a brief that makes you say, “wow, here’s a mighty smart lawyer who worked mighty hard.” A masterful brief, with law-review-worthy string cites and soaring prose, a rich vocabulary and clever allusions, all spiced with a devastating put-down or two to add zing. A Great Lawyer writes even obviously marginal issues with panache and erudition. Those are the briefs whose writers command attention and rise above the dreck.

But that’s not great lawyering.

Great appellate lawyering is harder to spot than Great Lawyers because it works very hard to hide and disguise itself. When I look at great lawyering in a circuit appeal, all I notice are easy issues. Great lawyering is a brief you finish reading and say, “any clown could win an issue this simple and clear-cut, how come I never get cases like this?” Great lawyering results in a lot of unpublished circuit opinions, unsexy little victories no one will notice, except for the clients.

Great appellate lawyering is recklessly ethical because it subordinates the lawyer’s interest in dazzling to the clients’ interest in winning. It is irrational because it takes more work than most clients or courts will pay you for. It isn’t brilliant, it is relentless — relentless in finding a winning point, relentless in pruning away the weaker issues and arguments, relentless in transforming good-enough fourth drafts into clear and persuasive briefs.

I used to write to impress other lawyers; now I write to persuade judges. It’s harder than it looks. Here’s a quote that helped light the way:

[I]f you require a practical rule of me, I will present you with this: Whenever you feel an impulse to perpetrate a piece of exceptionally fine writing, obey it — wholeheartedly — and delete it before sending your manuscript to press. Murder your darlings.

“I was ignorant of my own limitations”

Appellate advocacy is hard work. In some ways, the need for effort is obvious. Of course you have to put in the hours on each case learning the facts, researching the law, drafting and editing the briefs; of course you’re more likely to win if you outwork the other side.

But working hard on each case isn’t enough, not nearly. You also have to work hard on the skills of appellate advocacy, especially writing. Most of us don’t, and don’t even see the need. We’re like legal-writing professor Wayne Schiess:

When I was a full-time practicing lawyer, I thought I was a good writer. I believed I was above average within the profession. Now I see that I was quite mediocre, that I was poorly educated about the standards of high-level professional writing, and that I was ignorant of my own limitations.

Bryan Garner is right: “If you think you’re quite good . . . it’s probably a delusion.”

My own journey from self-satisfied to alarmed to improving has been helped along by books. The 3 most helpful to me:

Most such lists would include Strunk & White and Garner’s The Winning Brief. And any good CA3 enthusiast also would recommend Aldisert‘s glorious Winning on Appeal.

Appellate lawyers are professional writers.  Time we acted like it.

My favorite writing quote

Look for the clutter in your writing and prune it ruthlessly. Be grateful for everything you can throw away. Reexamine each sentence you put on paper. Is every word doing new work? Can any thought be expressed with more economy? Is anything pompous or pretentious or faddish? Are you hanging on to something useless just because you think it’s beautiful?

Simplify, simplify.

William Zinnser, On Writing Well