May 2011

keys.jpgThis week’s theme has been orders. Every now and them, you are lucky enough to win. And when you’re even luckier, you get to prepare the winning order. Sometimes, though, you get asked to draft an order, and your opponent does, too. Drafting an order in that situation is a little tricky, because you have to wear your advocate hat underneath your coat (although, if you’re writing good briefs, you are probably making your brief sound like the perfect order already). Sometimes, you get asked to write a brief because the judge is humoring you and wants to show the appearance of neutrality even though she has already made up her mind. Sometimes, you and opposing counsel have cut a deal, and you get to draft the order. Drafting the order is an awkward opportunity, and if you get it, want to share a few tips with you about how to do it well.


Make the Judge Look Good


The order, when filed, is a reflection of the judge, even if some lawyer opens the file in the Clerk’s office a century from now. Make the legacy a good one. If your order is going to compete with opposing counsel’s, make your look better than the one he presents. Think about the layout, font, spacing, and other things. Matthew Butterick’s Typography Lawyers is just as helpful here as it is for preparing the brief. So is the Bluebook. Make the order look like something the judge will be proud to sign before she reads the first word of it. When you cite cases, don’t forget to provide pinpoints. Make sure that the cases you reference really stand for your argument. All the things that you do for your credibility in a brief are even more important when you prepare the Order. If you betray the judge’s trust in this task, you will never get the opportunity again.


Just the Facts Ma’am


Think long and hard about the standard of review. Divide the order into findings of fact and conclusions of law. Put as much of the important stuff as you can think of into the findings of fact. If your order on the judge’s behalf is appealed, the facts are going to have a more favorable standard of review than legal conclusions. But don’t stop there. When you get to the legal conclusions section, place findings of fact there, too. Many legal conclusions are mixed with factual findings. And factual landmines are just the thing to sprinkle into a law section of an order. 


Have the Order Written (or, at least in mind) Before the Hearing


There are 3 reasons to pre-write it. First, when you think about how you’ll win, you already have victory in mind. Secondly, you will enter the field of battle with the ability to perceive the matter from the judge’s vantage point (you’re already considering it from your opponent’s, right?). And, from a practical standpoint, you can get a signature, get it filed, and get your client that much closer to the relief you are seeking. And you can hand over the “spoils of victory” before you leave the courthouse. Plus, things you can finish up at the courthouse don’t go to your inbox. Also, if the judge knows that he won’t have some item to take to his inbox after court, you get another edge over your opponent who didn’t bring a fill-in-the blank-and-move-to-the-next-case option for the judge.

I’ve written 3 orders this week. One was probably never read. One is under advisement. And one will likely be signed before the week is up. They’re deceptively difficult to draft. But there are worse things that could have happened to me this week than writing the orders for my client.

Bryan Garner.jpegIt is now the talk of the appellate bar nationwide. Bryan Garner has recently released transcripts of his interviews with 8 United States Supreme Court Justices. If you plan on doing any legal writing (whether it’s before the SCOTUS, another appellate court, or any where else), you need to download the interviews, available at The Scribes Journal of Legal Writing (PDF), and start reading them. It may be the best free resource for appellate advocacy available anywhere. There is so much to like in these interviews. The advice is spot-on. The justices are a tremendous resource. And, best of all, the interview are incredibly engaging.

If you have time to only read one, take a look at the interview with Chief Justice John Roberts. And if you have time for two more, read Justice Scalia’s and Thomas’s. Most of the bloggers who have covered this publication also recommend these interviews. Jay O’Keeffe’s De Novo features a post titled, I am John Roberts and So Can You. The Wall Street Journal’s blog, discusses Justice Scalia’s tip to avoid legalese in briefs: “If you used the word at a cocktail party, wyou people look at you funny? You talk about ‘the instant case’ or ‘the instant problem.’ That’s ridiculous.”

Justice Scalia also agreed with Mr. Garner’s suggestion that we should complete a well-crafted brief long before it’s due and spend the rest of the time refining it.

Writing advice in these interviews is not monolithic. Chief Justice Roberts discussed how he spent much of his time writing the statement of facts and noted that “every lawsuit is a story.” Justice Thomas, on the other hand, almost never reads the statement of facts, choosing, instead, to read the recitation of facts from the appellate court. Chief Justice Roberts highlights the importance of a summary at the beginning. Justice Scalia thinks a summery is superfluous.

Bryan Garner is the co-star in every interview. His questions and comment would be worth reading, even if he weren’t interviewing SCOTUS Justices. It makes for a fantastic introduction to him if you are not already reading his work. He’s also on twitter, and he’s as engaging 140 characters at a time as he is in his booklength prose. 

beverly-martin-2009-7-29-11-10-39.jpgJudge Beverly Martin of the 11th Circuit Court of Appeals spoke to the Georgia Bar’s Appellate Practice Section yesterday on the subject of “What Makes an Effective Appellate Advocate.” More specifically, her focus was on effective oral argument. I’ve heard many talks on this topic, and I read about it all the time. I even write about it from time to time. Judge Martin’s approach to the talk was different from the typical talk on effective advocacy at oral argument, which often takes a very nuts and bolts (do this, don’t do that) approach with little attention given to what the result should be. Instead, she spent her time describing, virtually inviting the audience to imagine, the perfect oral argument. She left us with the task of working hard to find our way to that destination. In this post, I want to summarize what, in her eyes, the perfect oral argument looks like.

The Advocate is Fearless

A fearless advocate is one who knows the facts and the law cold and has thought about the possible implications of each. The advocate is fearless as a result of focused concentration on the case in the weeks leading up to the argument. The fearless advocate also is prepared to engage in a calm conversation with the Court about the case. Judge Martin spoke of a level of preparation so great that there is little that can’t be answered or discussed. 

The fearless advocate is calm because that advocate is “ready to discuss any and every fact in a way that weaves into the lawyer’s theory of the case.”

Preparing to have a conversation and preparing to give a canned rehearsed speech are two different things. In addition, this picture of a perfect argument also presumes that the bench is equally prepared to have a conversation.

She cited a judge who told her, in her earliest days on the bench, that being an appellate judge feels like advocacy again. She explained that judges often come to oral argument having taken a position on the case, and that other judges often have different positions. The questions they ask the lawyers before them are often “adversarial” in nature and work as a tool to argue positions to the other judges on the panel. Which leads to the next part of the portrait of the perfect oral argument.


The Advocate is a Masterful Manager of Concessions

Then came the other part of the portrait of the perfect oral argument, which is more of an internal piece. It is important to concede the things that should be conceded to avoid embarrassment at having assumed a ridiculous position. But the need to make concessions must also be balanced with the knowledge that oral argument is “not a popularity contest.” Which means that it is equally important not to concede things that should never be conceded. Judge Martin explained that her colleagues are masters at getting lawyers to concede points at argument that will undermine the lawyer’s case and the other colleague’s position. 

How do you know where this balance is between things that must be conceded and should never be conceded? It requires mastery of the facts of the case and the law governing the issues. Sometimes, even sufficiency of evidence arguments can be abandoned to the client’s peril.


The Rest of her Talk

Judge Martin’s discussion of the management of concessions then moved to the difficulty that comes in some cases, which is that “the rule of law does not bend to exclude distasteful people.” Which may be a clue in the handling of cases where there is a good legal issue but distasteful facts. Sometimes, perhaps, we undermine our argument in trying to sanitize things about cases that should not impact the outcome if we assume a set of participants in the legal system that are applying the rule of law dispassionately.

Judge Martin characterized the flow of work at the eleventh circuit as “shocking” in its volume for ten judges to undertake. She also explained that the court handles it very well because “if you don’t move it, you’ll be buried.”

It was a good talk on an area of growth for me. I’ve often said that I think oral argument is the hardest thing about being a lawyer but also potentially the most rewarding. I never feel more like “a real lawyer” than after an appellate oral argument that went well, and I never feel more like I should start some other kind of business than after a really bad one. Judge Martin’s portrait of a great oral argument has given me something to aspire to and to envision in the future.

Caroline Vodzak  reports at Vodzaklegal that the Third Circuit has found that mere spatial proximity of guns to drugs is not sufficient to enhance a defendant’s sentence of drug possession without a specific finding of fact that the gun “facilitated or had the potential for facilitating the possession of drugs.” 

Mr. West was caught in possession of a small amount of marijuana and cash during a routine traffic stop. Police then found a handgun in the car’s glvoe compartment and another in Mr. West’s trunk. They later found a gun on his girlfriend’s dresser near a bed where Mr. West sleeps. The trial court (MD of Pennsylvania) interpreted the sentencing guidelines in reliance on another third circuit case broadly to give Mr. West a four-level sentencing enhancement, reasoning that the guns needed only to be possessed “in connnection with” the possession of drugs. 

The Third Circuit reversed, reasoning that “the mere connection with the drugs” was not enough, and remanded for sentencing, with instructions about the correct standard for application of the enhancement.

The interesting thing about this case is that the Thrid Circuit relied upon the Fourth, Fifth, and Eighth Circuits, which distinguish between drug possession and drug trafficking cases. It is not clear, from reading the opinion, whether other circuits make such a distinction and whether, on this issue, there is or might be a circuit split ahead.