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

We almost take it as a given that lawyers can’t write. (Just don’t tell Scott Turow or John Grisham.)

Why is that so? Why can’t lawyers write? At least in part, I think it is because we read so much bad writing when we are learning to be lawyers. Think of all the turgid prose and passive voice and inscrutable jargon in all those cases you had to read in law school. With that as a model, little wonder that baby lawyers thrive on writing the unreadable.

And judges are still giving us the kind of writing they tell us that they don’t like. After the break, an example taken from the recent Civil Appellate Practice Conference and the paper authored by Chad Baruch.

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It might surprise you, but I am a largely self-taught writer.

Then again, maybe it shows. 

The last time I had any formal training in English composition, Ronald Reagan was President.  The year was 1984.  A stamp was 20 cents. The Cosby Show debuted on NBC.  And we were all worried about ballooning federal spending: $851.85 billion.

Less than a trillion?  How cute!  You itty bitty widdle federal budget!

I've lived with a persistent fear and terror since 1984--fear of tiny little words and commas.  But after the jump, learn how Professor Wayne Schiess liberated me from my linguistic straight jacket.

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In my last post, I summarized the Fifth Circuit's new MGE UPS Systems opinion.  The substance is sound and important to civil lawyers, but I've got a bone to pick with the author.

This legal writing rant could be brought to you by Radio Shack and its series of Tour de France Alphonse commercials with Lance Armstrong.  The one I have in mind is, "LOL," where Lance sets out the rules of engagement:

First things first: No man over the age of 30 will EVER use emoticons. 

And poor Alphonse replies, "LOL, Lance," to which Lance gives his steely glare: 

Whoa.  LOL??!!!  Don't make me get off this bike.

Not that I am the Lance Armstrong of anything, but I propose a new rule:

No one with a law degree will EVER make up his or her own acronyms.

I've heard judges complain about briefing in which every corporation and affiliate bears its own inscrutable acronymic reference.  And the complaints are well taken.  You shouldn't need a score card or an answer key to tell who did what to whom. If one has to either memorize new abbreviations or flip back and forth to the definitions, the odds of engaging that reader are markedly diminished.

But the same can be said for opinions that are an alphabet soup of abbreviations.  Why not give parties and statutes names that make intuitive sense? (And secondarily, why can't companies have names instead of alphanumeric hieroglyphic identifiers??)  In the first pages of MGE, for example, we are treated to:

• MGE
• GE
• GE/PMI
• DMCA

And this opinion is not even a big offender.  But all one really needs is MGE and Power Management.  Because of all the extras, I can tell you that I was not LOL-ing or ROTFLMAO-ing or even LQTM-ing while I was trying to learn the technology involved in the dispute.  Several times, I was all, like, "BRB--I have to turn back to the first page to figure out what's going on here."

Simply stated, neither briefs nor opinions ought to read like Bankruptcy Plans or Offering Memoranda.  (Bankruptcy Plans and Offering Memoranda likely ought not be the way they are either, but that's a post for another day.)

Now, I'm not condemning acronyms that everybody knows already, e.g., IRS, NASA, USA, AT&T or ERISA.  Those kinds of acronyms aid comprehension because they already contain meaning.  Because they aid in precision and understanding they are good. 

But excessive use of made up acronyms rather than just calling the parties "Power Maintenance" or "Plaintiff" violates Kendall's Prime Directive Of Legal Writing:

No matter what Bryan Garner and the Bluebook say, anything that interferes with understanding is bad.

So, please.  The life you save may be your own:

No one with a law degree will EVER make up their own acronyms.

Don't make me get off this bike.

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Regular readers will remember the recent post where I kvetched about the tendency of SCOTUS judges to write "page turners"--and not in a good way.  Those are opinions in which you can't tell what is going on for lack of a good introductory paragraph to help you organize the information.  Instead you must wade through recitations of legal history, factual history, procedural history, and sometimes history history, all while wondering:

Is this going to be on the test?

If that post was a wag of my blogging finger, consider this a tip of my bloggorial chapeau.  For in addition to being the Chuck Norris of the legal world, the Chief Justice of the Supreme Court of Texas shows his federal brethren how it is supposed to be done.

Consider the introductory paragraph from Grant Thornton v. Prospect High Income Fund.  It gives you enough information to fully understand what the issue is, why it is important, who wins and why:

Certified accountants audit companies for many purposes, not least of which is to provide corporate directors with an objective assessment of their companies’ performance. Audits are also prepared to give information to a specific investor who the auditor knows will rely on its contents. We must decide whether the law imposes an obligation on the auditor to provide an accurate accounting not to the corporation or known investor, but to anyone who reads and relies on it. We conclude that it does not. Likewise, we hold that the particular investors involved in this case could not have justifiably relied on the audit reports as to purchases made after they knew the corporation was at risk of financial ruin, and they may not substitute their escrow agent’s reliance for their own without also being bound by its knowledge. Finally, we reject the investors’ “holder” claims—claims not that they bought or sold securities based on the auditor’s reports, but that they held them when they otherwise would not have—in the absence of a direct communication with the auditors. For these reasons, we reverse in part the court of appeals’ judgment and render judgment that the investors take nothing.

All of this comes in the first paragraph. And because it does, any other page in the opinion makes sense.  The opinion hangs together whether it is read straight through (which, let's face it, hardly ever happens) or in single issue snatches while writing your own brief.  And because you know how the story ends, you never have to guess about which facts or procedural events are important. 

It's not much of a way to write a mystery or a thriller, but it's the perfect way to write your brief if you want it to be read and understood. 

Or you could go for mystery.

So here's to you, Mr. Good Summary Introductory Paragraph Guy.  We doff our collective hat.

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Monday's Supreme Court opinions, ably reported by Erin Miller at SCOTUSBLOG, were . . . how does one say it . . . underwhelming. 

There I sat with my vuvuzela and SCOTUS face paint waiting on Bilski and waiting to see if the Fourteenth Amendment protects me from having the City of Chicago pry my guns from my cold dead fingers, and what do I get?

• The Carmack Amendment,
• The FAA,
• Seed deregulation, and
• It's wrong to support terrorism, even in the Ninth Circuit. 

Who knew?  Like you, I was gobsmacked.

But separate from the legal issues involved, I noticed something about the legal writing that pushed my buttons--indeed a HUGE pet peeve with me.  So consider yourself warned, SCOTUS.  Consider this post a wag of my prodigious, blogger finger.

After the jump, your humble blogger will demonstrate why Supreme Court Opinions are no place for prospective suspense writers.  Just tell us, "whodunit."

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An unusual case from the Fifth Circuit yesterday in which the Court gave the victory to a party who chose not to show up on the merits. 

In Texas Midstream Gas Services LLC v. City of Grand Prairie, the City believed that the appeal was moot, and chose only to brief the jurisdictional issue, not the merits.  The Fifth Circuit found that the case was a live controversy, leaving the City with no briefing on the merits.  Judge DeMoss, writing for the Court, exercised mercy, choosing to consider the merits rather than kicking the City to the curb:

Perhaps convinced that its mootness argument was a winner, Grand Prairie did not brief the merits of this case. At argument, counsel offered no explanation for this omission. In some instances, this would lead us to conclude that a party had forfeited its opportunity to prevail on the merits.. . . However, we retain discretion to consider matters not briefed, especially when they implicate substantial public interests. . . . Additionally, when the derelict party is the appellee, who may rely on a favorable ruling by the trial court, it makes sense to construe the “rule” of forfeiture more leniently. . . . We can also preserve judicial resources and avoid piecemeal litigation by addressing issues sooner rather than later. . . . In this case, it makes sense to proceed to the merits of the dispute. . . .

The Court then even went on to give the City a victory.  But lest you be tempted to go with the "no briefing" approach to appellate practice, the Court condemned the city's tactical choice in no uncertain terms:

We will exercise our discretion to proceed to the merits of this appeal. However, we emphasize that counsel’s amateurish tactical decision to address only Grand Prairie’s mootnes argument is an egregious lapse in counsel’s duty to brief all pertinent issues.

The case involves the substantive law of municipal ordinances, eminent domain, and preemption under the PSA, and I commend it to your reading. But I would not advocate leaving your success to the mercy of Judge DeMoss, or any other busy appellate judge.  As nice a man as he is, it's better still to do your own research and have a brief on file.

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There's a special form of legal terrorism going on out there.  Judges everywhere are being abducted and taken on horrific journeys that they never knew they were in for. 

Well, only kind of. 

What I'm talking about is the tendency of advocates not to tell the judge where they want to go and how they're going to get there.  The result of such a failure is that the decision maker you are trying to persuade feels like he or she has been dumped in the trunk of your car in the dead of night.  Instead of persuasion, the reader feels disorientation or worse. 

After the jump, read an illustration of the problem and some approaches for how to take your reader along for the ride while not making them feel like they've been abducted.

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If the present state of legal writing were any indication, Law Schools apparently teach their students that the ideal written argument should have all the attributes of a shell game on the carnival boardwalk, or maybe a game of "Three Card Monty."

Move things around, bamboozle the judge with your legal jargon and passive voice, and disguise your main point by burying your strongest cases to the back of the brief, preferably in a footnote.

Do you think I'm being to harsh?  Ask the judges.  I bet they'll agree with me.

Rather than "Three Card Monty," a former colleague of mine, who is now a judge, advocated a different paradigm:

You should write as if the judge is reading your motion at three o'clock in the morning . . . while drunk.

Now, there's a picture.  Her words.  The Judge's words.  Not mine.

After the jump, a good lesson in avoiding the "Three Card Monty" motion and writing for the Three A.M. Judge.

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Imagine the reception you would get at oral argument if you answered a question from the court by stating, “Well, your honor, two hundred and twenty years ago, in 1789, the Congress passed the First Judiciary Act, a completely different statute that has since been repealed, but that’s where I’d like to begin in answering the Court’s question.” 

If there is such a thing as the judicial “Nuclear Option,” one might expect it to be used. Judges still young enough to vault over the bench might consider it.  Others not quite so spry would press the panic button and call the marshals. But if you were in the Supreme Court of the United States, you’d be well within your rights to complain, “Hey, wait a minute. You started it!” 

After the jump, find out if it really is the Court’s fault, and in a fit of WASPish chutzpah, I will edit the court’s recent opinion in Hertz Corp. v. Friend (pdf) in an effort to improve upon it.

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