The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

Imagine that you have been hired to file a brief in a far flung jurisdiction where you have never practiced before. 

You proceed, conscientiously as always.  You analyze the record.   You thoroughly research and understand the law.  You outline your main points and your arguments, and you crack out a blue ribbon first draft. 

It's a thing of beauty--all those digital ones and zeros transmuted into crisp and persuasive prose in a clear and professional font on well-designed pages.

Things are going swimmingly until you pick up the rules of court where the brief is to be filed. The rules say:

All briefs to be filed in this Court shall be typewritten, double-spaced, in 12 point courier  or such other mono-spaced, slab serif 12 point font as is customarily available on a Smith-Corona or IBM typewriter. 

Of course, you'd be horrified.  "Nobody uses typewriters to write briefs any more," you'd observe.  'Why," you would ask, "with all the word processing and desktop publishing technology we have available, why should a legal brief look like an undergraduate term paper instead of like a really good book?"  And "What kind of backwards, one-horse, jackwagon jurisdiction has rules holding over the era of the typewriter?"

Actually, nearly all of them.  And the result is ugly briefs and deforestation.  After the jump, you'll find out why hardly any jurisdiction is immune from the typewriter effect.

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Okay, so now we're going to get down to meddling.

The Appellate Record is going to lay down the law on the use of footnotes when citing authorities.

I've heard judges complain about all the cases being in the footnotes.  And I've known judges and legal writing wonks who insist on putting all the cases in the footnotes. 

But I am convinced that they're all wrong.  Both sides.  Partially right and completely wrong.

I am convinced that there is only one way to do this, and that is the way that I do it--

--at least it is the way I do it right now, which has changed--

--and which may change again if I become convinced that there is a better way. 

Why so much confusion?  Because there are a lot of reasons that you might cite a legal authority and it can happen in a lot of different contexts.  Both the reason for the citation and its context might influence whether using a footnote is a good idea.

After the jump, more of the fight against footnote fundamentalism. 

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Have I said lately why "my" courts rock here in Houston?  Hat tip to the Texas Lawyer Blog for tipping me off on this story. 

Justice Jane Bland of the First Court of Appeals here in Houston will be honored by Chief Justice John Roberts at the Supreme Court of the United States:

Justice Jane Bland . . .   will receive the National Center for State Court’s 2010 William H. Rehnquist Award for Judicial Excellence at a ceremony tonight at the U.S. Supreme Court in Washington, D.C. U.S. Supreme Court Chief Justice John Roberts will make the presentation to Bland . . . . Mary C. McQueen, president of the National Center for State Courts, noted in a news release on the NCSC website that the center recognized Bland for her outstanding skill as a state trial and appellate judge and for her commitment to giving back to the community through bar and volunteer work.

I love seeing good people get recognized, and Justice Bland is "good people."  Justice Bland is smart as a whip, is always prepared, listens, asks good questions, and works hard with the goal of coming to the right answer.  Win or lose, what more could you ask for in a judge? 

And here in Houston, Justice Bland is not alone in those qualities.  Look down the benches and you'll see.  We have it good here in Harris County, Texas.

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So, this should be fun.  If there is anything that will kick the hornet's nest more than "my font is better than your font," it is the footnote wars.

I am sure that I'm exaggerating, but it seems that the proponents and opponents of footnotes have been jockeying over their lines in the sand to no great effect.  One fears that the improper use of the footnote will be the death of your substantive argument if your audience becomes doctrinally offended by your lack of footnote purity.

But never fear, gentle reader.  The Appellate Record is here to help.  For there is one right way to use or not use a footnote, and as luck would have it, that way is my way. 

(And here at the Appellate Record, it is either my way or the highway).

After the jump I will cast my hand grenade in the footnote wars.

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A quick bit of news especially relevant to our Texas and Houston readers.

Texas Governor, Rick Perry, has appointed Harvey G. Brown of the firm Wright, Brown & Close LLP as justice of the First Court of Appeals here in Houston. 

Brown, who formerly served as Judge of the 152nd District Court in Harris County, will take the place formerly occupied by Justice George C. Hanks.  His term will expire at the next general election.

Brown is a Texas "Super Lawyer," a frequent and highly sought after CLE speaker, and he writes with a very high level of scholarship on a variety of issues including the uses and admissibility of expert testimony (pdf). 

Both before and after serving on the trial bench, Brown pursued an active and sophisticated civil trial and appellate practice here in Houston.  He will join a bench that I already consider one of the smartest and best prepared of any that I get to argue before. 

Congratulations to Justice Brown and to Governor Perry for a well-made selection.

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So, we're still trying to make a user-friendly document by chunking information through the use of contrast and repetition along with proximity. 

But one way to strip your document of any comprehensible repetition is by getting things out of alignment.  Put some stuff on the left, some on the right, some wacky captions and maybe a diagonal text.

That's not a brief--it's a word search puzzle.

While there is some difference of opinion on the ideal alignment, the debate exists only on the edges--literally.  After the jump, the Appellate Record will try to "justify" its position concerning justified text, as well as rocking your world on block quotes.

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I know what you're thinking.  Your humble blogger has Fall Classic on the brain.

Perhaps so, but there's also a point here.  Remember the old Chevy commercial about "Baseball, hot dogs, apple pie and Chevrolet?"

Well that was a use of CRAP--or really the last letter in our CRAP acronym: Proximity.

Chevy was saying, "we're as American as baseball, hot dogs and mom's apple pie."

And if you don't buy a Chevy, you're not a real 'Uh-Mer-can.  In fact, you may be a commie.

Chevy was making it's product patriotic by placing it in proximity to other American icons. (And by using a jingle that can stick in your head like a blood clot for 35 years.  No need to thank me, I'm just here to help.)

After the jump, a homily on what this has to do with legal writing.

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