Category Archives: Writing

My essay on opinion typography is in the otherwise-splendid new issue of Judicature

My essay entitled Typography for Judges appears in the new issue of Judicature. Even if you don’t quite share my nerdy enthusiasm for fonts and line spacing, you may still enjoy it because it illustrates good typography using Judge Stephanos Bibas’s opinions.

Readers may notice that this essay is similar to my 2019 blog post about what lawyers can learn about typography from a Bibas opinion. After that post, the good folks at Judicature invited me to adapt it for their judicial audience, and their deft editing improved the original in ways big and small.

Judicature, “the scholarly journal about the judiciary,” is published by the Bolch Judicial Institute of Duke Law School. The current issue, summer 2020, is brimming with interesting pieces, including this one on how courts are coping with Covid and this one on bringing back the 12-person civil jury.

And, of particular Third Circuit interest, the current issue also features highlights from the terrific symposium on judicial independence and the rule of law that Judge Marjorie Rendell spearheaded last fall, all linked here.

[UPDATE: also, the last issue featured Judge Theodore McKee’s article, The Creation and Conclusions of the Third Circuit Task Force on Eyewitness Identifications.]

Did I feel a bit silly about presuming to tell judges how their opinions should look? Indeed I did! But I was flattered to be asked, and, when it came down to it, the opportunity to babble about typography and wave my pom-poms for the Third Circuit proved irresistible.

What lawyers can learn about typography from a Bibas opinion

Yesterday I opined that the typography in Judge Bibas’s opinions was the best typography on the Third Circuit “by a country mile.” Lawyers looking to improve the appearance and readability of their briefs could learn a thing or nine from Judge Bibas’s opinions.

Let’s take a closer look at specific things Judge Bibas gets right that oh-so-many lawyers get wrong:

  • Heading capitalization His claim headings, both in the opinion body and the table of contents, use Title Caps not ALL CAPS. The subsidiary headings all use neither. Only the section headings in the body of the opinion use all caps (and even there he uses small caps—and not in the table of contents). The key point: no unreadable multi-line all caps headings. Most briefs still get this wrong and, to any reader who cares about typography, it’s like showing up for your oral argument wearing a propeller cap. Sorry.
  • One space after periods
  • Zero underlining, and easy on the boldface
  • Smaller paragraph indents Just say no to those goofy 1-inch paragraph indents so many lawyers still adore, at least.
  • Hyphenation on with justified text
  • Better line spacing Opinions are single-spaced, but Judge Bibas uses slightly more open line-spacing to improve readability. What a difference: notice how much more visually pleasing it is to read the majority opinion than the dissent. The rules for briefs prevent lawyers from single-spacing (alas) but we can get closer to the ideal by using 28-point line spacing (i.e. actual double-spacing for 14-point type) instead of Word’s default double-spacing.
  • Hard spaces after § symbols
  • No orphan headings (“keep with next” setting in Word)
  • Using a bulleted list for emphasis
  • En dashes for number ranges
  • Real em dashes Not double hyphens autocorrected into en dashes
  • Citations in text not footnotes With more judges reading briefs on tablets, this has gone from the majority choice to the correct choice for lawyers.

Put it all together and it looks terrific. With a little effort up front, your briefs could look almost this good too. (Good luck matching Judge Bibas’s clear writing, though.)

Sure, a professional typographer could still pick some nits. Using Times New Roman is the biggie; CA3 judges may not have the option of picking a better font, but lawyers do and should. I use Equity for maximum font-nerd cred. And using soft returns (shift + return in Word) and hanging indents in your tables of contents makes the structure easier for readers to see.

To learn more about good typography, the indispensable resource is Matthew Butterick’s book Typography for Lawyers, now in its second edition. If the appellate lawyer you were thinking about hiring doesn’t own a copy, keep on looking. Other reliable resources that are free include Butterick’s superb website and the Seventh Circuit’s typography guide.

How to become a good appellate lawyer

If you ask most normal lawyers what it takes to become a good appellate lawyer, I suspect the answers you get would boil down to something like this:

(1) be born freakishly smart, and

(2) possess people skills so deficient that you’re not able to pull off other, better-paying lawyer gigs.

This is wrong. Sure, brainpower helps, and so does an affinity for monkish solitude shackled to your computer. But innate brainy introversion isn’t the key to being a good appeals lawyer. The real key, I’m convinced, is sheer cussedness, a goat-like determination to win cases and to continually improve.

No, I mean it.

What, “Be Goat-Like!” isn’t the professional inspiration you clicked on this post to receive?

[Smiles emptily]

Okay, fine. Here, more wordily, are my big ideas on how to become a good appellate lawyer:

1. Find winning issues. There’s a Statue of David inside every big hunk of marble, but most sculptors settle for something far less. Is there a winning issue inside every appellate record? No there is not, says this bitter habeas lawyer. But digging for the strongest issues, and the strongest ways of framing them, is what sets great appellate lawyers apart from all the great-seeming ones. It’s so, so much less work to find the competent-sounding losing issues that everyone else cheerfully settles for than it is to keep hunting for the winners. That hunting is anything but glamorous. To everyone else, your “relentless” looks quite a bit like “unhinged.” Then, after you finally find the winning issue, it just looks obvious—everyone figures you’re just the lucky schmuck who bumbled into another good claim. So be it. Everything else you do during an appeal, all your Garner-approved issue statements and Butterick-approved typography, are mere pinstripes on your race car: the issues you find and frame are the engine.

2. Learn to write clearly. Some things you either have or you don’t, like long legs or Judge Ambro’s voice. Writing ability ain’t like that. Writing is a skill, which means the way to become competent is to set out on a deliberate course of study. Ever made a conscious decision to improve your writing, and then followed through on that decision over a period of months and years? No? Then (a) your writing probably stinks (sorry!), but (b) dramatic improvement is there for the taking.

For appellate advocacy, the #1 most important thing is clarity. When you write sentences that judges and clerks can understand without re-reading them three times, good things happen. To get started, pony up for a boring and stupid-expensive book you’ve probably never heard of: George Gopen’s The Sense of Structure. (Not quite as good, but far less expensive: used older editions of Joseph Williams’s Style.) Thank me later.

3. Learn tone. The #1 thing that other good lawyers get wrong but good appellate advocates get right is tone. I’ve blathered on about tone already in the context of oral argument, and the same basic points apply to brief-writing, too. Said I:

The right tone for appellate oral argument is a challenge to define. Be crisp and prepared but not wooden. Be reasonable but not wishy-washy. Be persuasive but not too emphatic. Four parts advocate, one part law professor, add just a dash of actor. It’s hard enough to define the right tone—summoning forth that tone under the knee-melting stress of argument is much harder, and maintaining it under fire is hardest of all.

Most oral advocates, in my view, err on the side of over-certainty. We argue as if the law is all obvious, the facts on each point overwhelming. The problem isn’t just that adjectives and adverbs don’t persuade, or that appellate judges bristle at bombast. The deeper problem is that judges don’t want to hear how easy and obvious your case is. If they thought it was that simple, they probably wouldn’t have granted you argument.

Our natural impulse is to assure the judges how overwhelming our side is, but most judges don’t want pat answers to hard questions. They want lawyers who know the facts and the law cold who are willing to help them grapple with the hardest parts of the case. You ain’t much help with the grappling if all you can do is deny that any hard parts exist.

The best way to learn tone, in my view, is to study how the great appellate advocates make their points. Pick two or three you admire (if you need some ideas, try here), get some of their briefs, and get reading. How do they talk about the ruling below, the other side’s arguments, and their own weakest points? Spoiler alert: it’s not the same way the crummy lawyers do.

4. Indulge delusions of grandeur. In reality, who is likely to read your brief with real care? Opposing counsel. The clerks. The judges, probably. Maybe mom. Will the quality of this brief meaningfully impact your professional reputation? Probably not. Heck, will anyone even notice whether you swung for the fences or just went through the motions? Quite possibly not.

That realization, friends, is the reef upon which many a promising appellate career founders. Why put in 100% effort on one appeal, when you can put in 25% effort on four, and get paid for four, without anyone the wiser? Your clients won’t know, the judges won’t care, and everyone else is too busy on their own cases to notice.

Why, then? One answer to this question comes from Anthony Bourdain of all people. In Kitchen Confidential, the book that launched him from restaurant anonymity towards TV fame, he describes the difference between his own middling cooking career and a contemporary’s he admired:

Now here, exactly, is where our career paths divide.

Scott had some chops now. He was good on the line. He had a résumé, some notable names and recommendations, working experience, exposure to France and French food.

So did I, at that point in my career. I was good! I’d been to France. I had a CIA diploma—at a time when that was a pretty rare and impressive credential. So, what the hell happened? How come I’m not a three-star chef? Why don’t I have four sommeliers?

Well, there are lots of reasons, but one reason is that I went for the money. The first chef’s job that came along I grabbed. And the one after that and the one after that. Used to a certain quality of life—as divorcees like to call it, living in the style to which I’d grown accustomed—I was unwilling to step back and maybe learn a thing or two.

Scott was smarter and more serious. He was more single-minded about what he wanted to do, and how well he wanted to do it.

Appellate lawyers, like chefs, only achieve our potential if we’re single-minded about what we want to do and how well we want to do it.

That means putting in the (unpaid, invisible) work between cases learning skills and confronting weaknesses. It also means, on each case you do, indulging your delusions of grandeur. Treat every brief and every argument like it’s the one that judges and lawyers will notice—and will take your measure by.

Because one day, it will be.

Collegiality and credibility, Hemingway and statements regarding oral argument: two Third Circuit judges share their advocacy insights

Third Circuit Chief Judge D. Brooks Smith and Judge Stephanos Bibas shared guidance on appellate advocacy yesterday, and I feel sorry for anyone who wasn’t there.

The two judges presented at a CLE program at the courthouse co-sponsored by the Third Circuit Bar Association and the Philadelphia chapter of the Federal Bar Association. [Disclosure: along with Nilam Sanghvi and Rick Haggerty, I was one of the event’s organizers.]

A few of the points that stood out to me:

  • Both judges emphasized the Third Circuit’s collegiality. Judge Bibas said he realized upon joining the court that it’s reputation was “not just advertising,” it indeed is an “intensely collegial place.” Chief Judge Smith described the court’s collegiality as “extraordinary” and something he believed in with “almost religious intensity.” Any lawyer familiar with the Third Circuit knows it lacks the interpersonal fireworks of some other courts, but hearing the two judges talking about it yesterday drove home for me in a new way how central its collegiality is to the Third Circuit’s identity.
  • Chief Judge Smith described how he “enjoy[s] a really good brief.” (Every lawyer in the room secretly knew it was their briefs he had in mind.) He said he wakes up early, puts on coffee, and settles in with his dog to read briefs, and when it’s an excellent brief he “genuinely enjoy[s] it.” He wryly observed that he prefers briefs whose sentence structure is modeled more on Hemingway than Faulkner.
  • Judge Bibas spoke of the importance of repeat players protecting their credibility. He suggested counsel take on their cases’ weaknesses head-on instead of trying to hide them. He also encouraged lawyers to use an understated, respectful tone, honoring the “intense presumption” that people coming to the court offer their arguments in good faith. Later, he observed that lawyers who file briefs with shrill, intemperate language are less likely to get oral argument because the judges are less confident their arguments will assist them.

And a few smaller-bore points:

  • Chief Judge Smith prefers it when lawyers cite state-court sources as authority for what state law is. Citing federal cases for the meaning of state law strikes him as disrespectful to state courts, but he admitted being sure he was an outlier on this point.
  • When he was an advocate, Judge Bibas was a firm believer in oral argument moots, holding five or six of them for one case.
  • Chief Judge Smith mentioned that he does not see briefs that set out arguments why the court should grant oral argument in the case, and said this is something more lawyers could do. He explained that he didn’t mean a boilerplate request for argument, but rather explaining why counsel wants argument, something specific to the case or issue.

I’m sure my scribbled notes don’t let me do full justice to the judges’ comments, but it was a terrific program. The judges’ panel was ably moderated by Nancy Winkelman, formerly a top appellate practitioner at Schnader and currently interim head of the Philadelphia District Attorney’s office’s law department.

In addition to the two judges’ presentation, the program also included an attorney panel that was two-thirds dynamite, with certified superstars Elise Bruhl of the Philadelphia Law Department and Nilam Sanghvi of the Pa. Innocence Project, plus me. The lawyer panel was moderated gracefully by Chip Becker.

This program was the third in a continuing series of advocacy CLEs that the Third Circuit Bar Association is putting on in locations around the circuit, following similar events last year in Wilmington and Harrisburg. Next up? To be decided.

We’re fortunate in the Third Circuit to have judges who engage with the bar and share their perspectives on how to improve the quality of representation that litigants receive. Lawyers, don’t pass up these real opportunities when they come.

Lawyer’s Third Circuit brief results in bar discipline

The Disciplinary Board of the Supreme Court of Pennsylvania is scheduled to issue a public reprimand next month of an attorney who filed a Third Circuit brief containing comments the panel described as “unprofessional.”

According to a news report today, a Wilkes-Barre lawyer will appear on January 7 for the Board’s public reprimand. The lawyer reportedly acknowledged that his statements were inappropriate and consented to the reprimand.

The Third Circuit’s 2017 non-precedential opinion , authored by Chief Judge Smith, catalogs the offending statements in a footnote:

See Appellant’s Br. at 13 (“The District Court . . . smugly contradicted itself”); 14 (“If, as the District Court so proudly recited”); 15 (“a genuine issue of fact was clearly and intentionally overlooked by the District Court” and the District Court’s analysis is “quite frankly, outright false”); 16 (“evidences the District Court’s clear lack of understanding of Pennsylvania Tax Sale Law,” “seemingly in an effort to bolster a legal position that really does not exist, the District Court misstated the status of the law,” and the “Court chose to omit that crucial language to avoid giving Swinka their opportunity in court”); 17 (“two (2) distinct problems with the District Court’s unsubstantiated position”); 19 (“the District Court grossly erred in its ruling”); 19 n.1 (“the District Court has acted far outside its bounds”), 20 (“The District Court . . . was once again, wrong.”); 21 (“This issue presents the Third Circuit with one of the more shocking decisions and questionable reasoning by the District Court. The District Court astonishingly claims”); 22 (“[i]t is not only disingenuous for the District Court” and “the District Court misstates, and clearly misunderstands”); 23 (asserting the Court “padded its opinion with irrelevant citations to cases”); 24 (“The District Court has gone to great lengths to deprive Swinka of its rights”); 25 (“most egregiously, the District Court seeks to deprive Swinka of its rights” and “clearly feels that Swinka’s rights are secondary to everyone else merely because of the values involved”) .

The panel’s view of these statements was scalding:

Swinka appeals the dismissal of all of its claims, except the breach of contract action. In doing so, Swinka’s brief repeatedly casts aspersions on the District Court’s analytical ability. The aspersions lack substance and utterly fail to advance Swinka’s legal arguments. As such, these unprofessional comments reflect poorly on Swinka’s counsel.[ When counsel wastes ink attacking the ability of able District Courts instead of advancing his or her client’s legal arguments, we smell more than a hint of desperation and confusion about how an appeal works. It is an unbecoming way to brief an appeal.

I can’t tell who actually referred the matter to the Disciplinary Board, but the opinion included a pointed note that counsel is a member of the PA bar bound by ethics rule 8.2(a) (“A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”).

So, lawyers: don’t do that.

[UPDATE: I included the lawyer’s name in my original post, but I’ve removed it (not at anyone’s request) because I decided it wasn’t necessary to include.]

An intro to Twitter for lawyers on the fence about trying it

I started using Twitter the day the CA3blog site crashed.

In September of last year, I wrote something provocative here about a book by Judge Posner (“batshit crazy”)  that got a bazillion hits from readers on Twitter, enough hits to bring down the blog’s website. Until that day I’d been a proud Twitter hold-out, but crashing my humble blog got my attention.

Fourteen months, 2,466 tweets, and 1,093 followers later, I’ve learned a thing or two about Twitter. And though I’m very far from a Twitter guru, I thought it might be useful to share what I’ve learned for others—especially appellate lawyers like me—who don’t use Twitter and wonder if they should.

Twitter can be useful, and it can also be god-awful.

The useful:

  • it’s good for breaking news;
  • it’s hard to be beat for legal news that isn’t sexy enough for media coverage (like judicial-nominations developments and analysis, for example);
  • there’s a vibrant, welcoming online community of appellate lawyers who post there;
  • it’s a decent way to expand your professional network, especially if you’re lousy at cocktail-party banter; and
  • it’s a way to participate in the conversation on things you care about.

For myself, I’ve had some wonderful experiences on Twitter, interactions that I’d never have had any other way. Geeking out with a top conservative academic about circuit nominees, for example, or trading ideas about how to get better at oral argument. And through Twitter I’ve become friends with a slew of smart, decent women and men I’d never have run into otherwise. At its best, Twitter is glorious.

The god-awful:

  • it’s an addictive-by-design time-suck;
  • chances are it won’t get you one single case;
  • it brings out the worst in many of us; and
  • it makes it wonderfully easy for you to say something spectacularly stupid for the whole world to see.

Twitter is how I imagine cocaine: exhilarating at times, and an effective dopamine jolt, but in the long run, the more you try to get from it, the more it sucks from you.

So, can you enjoy useful Twitter while avoiding the god-awful? Maybe. Many do. But, honestly, I bet many regular Twitter users would say “probably not.”

Appellate types, Twitter will try to claw you in. You’re a professional arguer for god’s sake, so when someone you’ve heard of takes a jab at you, you’re going to want to swing back and show your stuff. And chances are you’re goal-oriented and competitive, so before you know it you’re eying your follower count and spending Saturday evenings trying to craft 280 characters of devastating wit. Ugh.

So, on that jolly note, here are a few thoughts on how to get started with Twitter, should you decide you want to.

Setting up your account. Use your real name unless you plan to just lurk or blow off steam. Anonymous accounts tend to get ignored. Compose your profile-page blurb with some care—other viewers will see it anytime they hover their mouse arrow over anything you post, so it’s the main thing many users will know about you.

Deciding who to follow. This part may seem daunting at first, but it’s actually the easiest part. Search for people you respect. You’ll find lots of lawyers, scads of law professors, and more or less every journalist and politician.

To get you started, nationally prominent appellate lawyers active on Twitter include George Conway, Walter Dellinger, John Elwood, Deepak Gupta, Neal Katyal, Kannon Shanmugam, and Laurence Tribe. A few others who’ve earned broad followings include Jonathan Adler, Howard Bashman, Adam Feldman, Susan Hennessey, Carissa Hessick, Orin Kerr, Leah Litman, Sean Marotta, Raffi Melkonian, Jaime Santos, and Ken White (@Popehat).

But, most of all: me.

Getting followers. Step one, follow the people you want to follow you, and many will follow you back. Find users like you, look at their followers (click on their name, and then on their profile page click on “followers” near the top), and go nuts. Step two, interact with some appellate-oriented folks who tweet a lot and have a lot of followers. Respond to their tweets, say something nice, disagree intelligently, whatever. Step three—and this is the one that actually matters—be helpful and interesting. If you add value, people will find you.

Avoiding professional self-immolation. Twitter is public, dummy. After you’ve drafted a tweet but before you hit the tweet button, ask yourself, “Would I be cool with this being quoted in the Washington Post?” And, “Could this be the basis for a bar complaint?” Try not to post when you’re angry, or enjoying a delicious double IPA. Don’t aim to humiliate anyone, especially if they’re less powerful than you. Err on the side of concealing your inner dumbass.

Bottom line, do I think you should start using Twitter? No, I don’t. It’s absolutely not necessary for your career, and it could well hurt more than it helps. You almost certainly stare at your phone too much as it is, for heaven’s sake.

But if you’re inclined to try it anyway, by all means join the fun.

Blogging partner rampages against Third Circuit ruling [updated]

In an extraordinary series of blog posts, apparently intended to persuade the Supreme Court to grant certiorari, a prominent local large-firm partner has described the recent Third Circuit Fosamax decision as “folly,” “pure hogwash,” “very unsound and unwise,” “clearly wrong and clearly pernicious,” “the mess made by the Third Circuit,” “truly bizarre,” “such an obvious, pernicious error,” “ridiculously unjust,” an “abomination,” “especially crazy,” and “even crazier” than another federal-court ruling  that was “based on crazy reasoning.”

The partner also said the ruling “turns on dithering,” “reaches a high-water mark” among “rotten preemption decisions,” and “wrecked the law on preemption.” And, while I’m not certain, I think he even implies that the Third Circuit acted in bad faith: he said the opinion “twisted” precedent and “apparently works doctrinal wonders,” and “the Third Circuit had done its best … to make it impossible to get summary judgment on preemption.”

[UPDATE: The post’s author has sent me a gracious note in which he emphasizes that, while he criticized the Third Circuit’s reasoning, he never meant to accuse the court of bad faith.]


The author of the posts is acclaimed Reed Smith partner and Penn Law lecturer Stephen J. McConnell, and these posts, which appeared on the Drug and Device Law blog (“The definitive source for intelligent commentary on the law that matters for drug and device cases”), are here, here, and here.

[UPDATE: Not only was the Fosamax panel (Fuentes, Chagares, and Restrepo) unanimous, but the court denied the petition for rehearing en banc without recorded dissent.]

Now, I certainly believe that lawyers have a right to speak out against decisions they think are wrong. And, I confess, I’ve criticized a ruling now and again myself.

But, good golly. Is that parade of invective wise? Effective? Appropriate?

Not in my view.

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.



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?


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 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


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