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 Great lawyering results in a lot of unpublished circuit opinions, unsexy little victories no one will notice, except for the clients.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.
Great post. I could be mis-remembering here, but one of my favorite sections of Lewis’ MAKE NO LAW about NY Times v. Sullivan is where Prof. Wechsler says that he tries to write the brief that the justices and their clerks will want to crib from in writing the opinion. That brief almost always must follow your excellent suggestions and inferences: it has to be the brief that seems so absolutely right on the law and on the facts, and is so devoid of barbs and high-flown rhetoric, that cutting and pasting it seems natural to persons who have to make clear decisions expressed without undue passion.
Spoken like a former district court clerk.