There’s been a lot of discussion in the blawgosphere lately about Bryan Garner’s interviews with eight sitting Justices of the United States (as of 2007), in which the Justices uniformly agreed that the briefs submitted to them were too long and raised too many issues.
For once, practicing attorneys and law professors have been unified in their response: the Supreme Court is full of hypocrites. As Prof. Gerard Magliocca wrote,
The headline is that the members of the Court think that briefs are too long. “Lawyers somehow can’t give up the extra space,” Justice Ginsburg said, “so they fill the brief unnecessarily, not realizing that eye fatigue and even annoyance will be the response they get for writing an overlong brief.”
If you substitute “Justices” for “Lawyers” and “opinion” for “brief,” you get a terrific description of the Court’s output most of the time.
An impressive turn of phrase, but mere hypocrisy is not the only problem here. Listening to the Supreme Court’s advice and hacking away your own arguments and issues is foolish and self-defeating. Leaving in a “weak” or “lengthy” argument can mean the difference between winning and losing. In some cases, it can mean the difference between life and death.
But first, a few words of about Dennis Rodman. Surely you remember Dennis Rodman, the question is what you remember about him. His flamboyant personality — who can resist a good feather boa? — overshadowed most of his work as a basketball player. More than few don’t recall much more about him, except perhaps that Academy Award-winning* drama he co-starred in with Shakespearean thespian, Jean Claude Van Damme.
Do you remember him as one of the greatest basketball players of all time?
[W]hat Rodman really should be known for, according to a ridiculously detailed series of blog posts that began last August and was completed last month — a month after Rodman was voted into the Hall of Fame — is being the best rebounder in NBA history and one of the league’s most valuable players ever.
Benjamin Morris, on his blog Skeptical Sports Analysis, begins his generally persuasive case by assessing Rodman in terms of his rebounding. Morris eschewed the rebounds per game stat, which is skewed in several ways. … Instead Morris uses rebounding percentages on the offensive and defensive glass. These are estimates of what percentage of available rebounds a player collects. … Rodman exceeded 10% on each side of the floor in each season of his career, usually by a wide margin. He grabbed 17.2% of available offensive rebounds and 29.6% of defensive rebounds, leading the league in the first stat seven times and the second six times. He has six of the 17 best seasons in history for offensive-rebounding percentage, and six of the 12 best for defensive-rebounding percentage.
The facts that command our attention aren’t necessarily the most important facts. Quite the contrary most of the time.
Back to brief writing. Here in Pennsylvania, earlier this month we had an even more vivid example of judicial frustration with the length and scope of briefs when chief justice of the Pennsylvania Supreme Court Ronald Castile filed a concurring opinion attacking the federal defenders’ office for the enormous length and breadth of the briefs filed in capital punishment cases in Pennsylvania. Gideon, who knows a thing or two about being a public defender, covered the zealous advocacy aspects at his blog, including by posting the federal defenders’ response.
One part of the federal defenders’ brief should be read and considered by every practicing lawyer and sitting judge:
Allied to the notion of “too many” claims is the accusation of raising “frivolous” claims. “Frivolous,” however, is often in the eye of the beholder. In Spotz itself, the majority refers to the prosecutorial misconduct claim as “frivolous,” 2011 WL 1601629 at *21, but Justice Saylor rejected such a characterization of the claim, id. at *87 (Saylor, J., concurring). There are cases in which relief was ultimately granted on claims that had been labeled by this Court as frivolous, lacking in merit, specious, or words to that effect. Compare Rompilla v. Beard, 545 U.S. 374 (2005) (granting relief on claim of ineffective assistance at penalty phase), with Commonwealth v. Rompilla, 721 A.2d 786, 790 (Pa. 1998) (same claim “lacks arguable merit”); Lambert v. Beard, 633 F.3d 126 (3d Cir. 2011) (granting relief on Brady claim), with Commonwealth v. Lambert, 884 A.2d 848, 855 (Pa. 2005) (same claim is “purely speculative at best”); Bond v. Beard, 539 F.3d 256 (3d Cir. 2008) (granting relief on claim of ineffective assistance at penalty phase), with Commonwealth v. Bond, 819 A.2d 33, 47 (Pa. 2002) (describing same claim as “meritless” and “specious”).
It’s a truism in the legal system that “reasonable minds can differ,” but the examples above go far beyond that. Those cases involved arguments which one courts thought were unreasonable but which a subsequent court found not only meritorious but indeed accepted as correct statements of law. Maybe the truism should be “unreasonable to one jurist is victorious to another.”
Truth is, lawyers did not create this monster. In any given appeal, there are a thousand legal issues which could be raised. Although we as lawyers flatter ourselves as mind-readers, we don’t really know what a given court is going to think when they first see our arguments. We look at the arrows in our quiver, shoot the ones that look sharpest and truest then start heaving the wobbly arrows into the air like javelins. If we still have time, we scour the ground for any rocks within reach and throw them, too. You never know what will hit.
Consider today’s Legal Intelligencer reporting on the Third Circuit reversing an order permitting the deposition of Joseph Kohn in the Ecuadorian oil pollution cases:
U.S. Circuit Judge Morton I. Greenberg, who was joined by Judges Thomas L. Ambro and D. Michael Fisher, found that “because the communications were not made in confidence — due to the presence of the ‘Crude’ filmmakers — they were not privileged to begin with, and there was no privilege to waive by their disclosure.”
As a result, Greenberg said, “there was no basis for finding that the communications effectuated a subject matter waiver of the attorney-client privilege for Kohn’s communications.”
The 44-page decision in In re Application of Chevron Corp. is an unexpected setback for Chevron. Its lawyers had never addressed the argument that the privilege had not “attached,” and lawyers for Kohn and the Ecuadorean plaintiffs had raised the argument only in a footnote.
A footnote. A footnote! Kohn and Chevron were, I assure you, represented by some of the best lawyers in the business, lawyers who know the issues, know the judges, and had the time and the money to perfect their briefs.
Yet, when all was said and done, none of their arrows hit, not the straight ones, not the wobbly ones, not the broken ones. Someone on Kohn’s team saw a rock lying on the ground and threw it as an afterthought. That’s the only thing that hit.
What would the Justices of the United States Supreme Court advised had they have been on those teams? Ignore it. Don’t make your brief too long. Focus on the big issues. Drop little issues you don’t think will win. Chevron apparently did that and didn’t even respond to the footnote.
I don’t pretend to know why the Justices have such bad advice for legal writers, but the take-home message is quite clear: don’t rely on the Supreme Court for advice in writing your brief.
* “Academy Award-winning” not intended to be a factual statement.