Column composed by a Human

Sorry, once again, I stress the perils of A.I. Fears that it may equal, if not surpass, “human intelligence” are not overstated. A recent incident in the field of law proves that A.I. mimics human behavior. It lies; it is stupid; it is sociopathic. And what has become de rigueur, it doesn’t care. Why should it? No consequences. Case in point – I assume you all have heard about the lawyers who used ChatBox to write their brief. ChatBox was either stumped, lazy, or just didn’t like the lawyers who sought its help. It made up nonexistent cases. Whatever lawyers think of certain judges, only the most dimwitted would submit a brief with fictional citations. Lawyers who pull such a moronic stunt could wind up with a judge who looks up the citations. I mean most judges.

As luck would have it, the hapless (euphemism) lawyers filed their brief in a case where the judge tried to look up the citations that did not exist. ChatBox doesn’t give a (expletive deleted). Why should it? I circle back to that’s de rigueur.

So what follows is a human appellate justice’s view on what he (I) likes to see in an appellate brief. Of course, you have read in this journal numerous pieces by “appellate specialists” on appellate advocacy that reveal the secrets of the winning brief. Many of these articles are excellent. But perhaps a view from the other side of the bench might be helpful, at least in the court where I preside. If you think you have seen this piece in the past, not to worry. This is a revised version. Oh, and one other point, it is your prerogative to ignore my suggestions. I advise against consulting ChatBox for its opinion.

Notes to Myself and Others

From Aboveground

(Apologies to Dostoevsky)

or, In Pursuit of Goals

However Short We May Fall of Them--

Or is it, However Short of Them We May Fall?

The writing of briefs, and points and authorities – self-reminders I forget more often than I wish to admit.

1. Be wary of your opponent’s briefs. Some are excellent; some are deficient. Approach them as you would a sleeping tiger or a calm river – with caution. The gently flowing water may have treacherous undercurrents. The cases cited are not always pertinent to the issues, and the issues are not always fully developed. Therefore, you should always check your opponent’s research.

2. Your brief should succinctly state the following:

A. The nature of the case. “Bay 0. Wolfe appeals the denial of his motion for summary judgment.” “Grendel Schwartz appeals his conviction of mayhem.”

B. The issues or questions to be decided.

C. What the holding should be; you are not writing a mystery novel, so you should immediately tell the reader that the butler did it. In some cases, you may decide to state the holding in the very first sentence. For example: “We urge the court to hold that a police officer may stop an automobile for investigation if the officer has a reasonable suspicion that a passenger in the automobile has committed an offense.”

D. Facts. Pertinent ones only, please. To ensure that you stated them with scrupulous care and objectivity, check and recheck the record and transcript. Make sure the facts in one section of the transcript do not contradict facts in another. Do not mislead the court, the opposition, or yourself.

E. Argument. Give reasons for the holding you desire. Each issue should be discussed separately under separate numerical headings in the argument section. Depending upon the length and complexity of the case, use numerical or short subject headings. This avoids repetition, makes for easier reading, and keeps the issues distinct in your mind, and in the reader’s mind. Support your conclusion with cases, statutes, and, above all, logic. Be certain that each case you cite stands for what you say it does.

F. Conclusion. Tell the court what you want it to do – reverse, affirm, or remand. If you think a remand is appropriate, specifically state the instructions you wish given to the trial court.

3. In your rough draft, highlight your weaknesses and then write a response to the weak points. Sometimes weak points cannot be analyzed thoroughly unless an issue is written both ways. After reading both versions, you will often know how to best argue a weak point.

4. The brief should be interesting and persuasive. It must be free from obscurity or ambiguity. “Plaintiff rented the store.” Was plaintiff the lessor or the lessee? “They are ridiculing judges.” Are the judges the victims or are they just acting naturally?

5. Write with the reader in mind. Most readers know as much about the case as you did before you began to work on it. Therefore, do not assume the reader knows anything about it. Explain to the reader what the case is about. Although rudimentary points should not be labored, they may be necessary as stepping stones to later points.

6. Write in a style that is crisp, concise, and sparkles with clarity. Some concepts are complex but can be stated clearly. To simplify is not to patronize. The writer who obfuscates and complicates makes it tough for both the reader and the writer. If the brief reminds you of Kant, rewrite it so that it reminds you of Plato. Avoid the abstract; embrace the concrete. Refer to the parties by name. Your brief comes alive with people, chairs, doors, houses, cars, roads, buildings, and, on occasion, dogs and cats.

7. Short sentences usually deliver more power than longer ones. Active verbs deliver more punch than passive ones. “An objection was interposed by counsel.” “Counsel objected” is better. Verbs should be close to their subjects and objects. What do you think of the following sentence? “The judge, looking surreptitiously to the side, and winking at the amused clerk, sustained the objection.” Glad we agree.

8. Make the brief short, even though it takes a longer time to write. Use Ockham’s razor and cut, cut, and then cut some more. If we compare the writing of a brief to making a movie, the cutting room floor should be cluttered.

9. Avoid such pests as:

“in connection with”

“with respect to”

“despite the fact that”

“the fact that”

“the former and the latter”

“it would appear that”

“in terms of” - unless we are talking about mathematics

“viable” - unless you are writing an abortion case

“contact” - unless you are writing about sports, electricity, or vintage aircraft

“while” - as a synonym for although

“parameters” - as a synonym for perimeter or boundary

“alternatives” - not a choice among more than two possibilities or things “meaningful” - adds little meaning, particularly when speaking of a “meaningful relationship”

Avoid most adverbs, in particular, “clearly.” It probably isn’t clear if you have to say it. Also avoid the meaningless adverb “rather.” “He was a rather temperamental judge.” Was he, or wasn’t he?

10. Do not pad. Be wary of adjectives. They are seductive, but they promise more than they give. The most dependable friends we have are nouns and verbs. Verbs should be active. They provide the muscle to carry your ideas forward.

11. Do not use nouns for verbs unless you plan to work for the Government. Grammatical transvestites are unseemly. Traffic announcers tell us to “transition” from one freeway to another; software people “input” or “access” information. Corporate executives tell their managers to “dialogue” with one another. We should not “prioritize” our options.

12. The brief is more than a collection of examples of good grammar and syntax. It is an essay that should make sense and be logically sound. Its sentences and paragraphs should support one another. It should be pithy, but not every sentence should be short and declarative. Some will be longer and more complex, but all should be clear and easy to understand. In this way the brief will not be rigid like the third little pig’s house of bricks. True, the third little pig built a safe house. But nuanced and subtle points may resonate best when the structure is open and flexible, like a geodesic dome.

13. A verb must agree with its subject in number. Use singular verbs with singular subjects, and plural verbs with plural subjects. “She works.” “They work.” Problems sometimes develop when words are placed between the subject and the verb. “The behavior of those criminals who are raping and pillaging is disgusting.” “One of the lessons the judge learned was to be compassionate.” “Each of the resumes has some merit.” “He is one of those attorneys who writes (not write) unintelligible briefs.”

14. Use parallel construction: neither/nor, either/or, not only/but (also), both/and, rather/than.

Sentence elements joined by a coordinating conjunction must be parallel. “We should be concerned with good writing and with clear thinking.” Gerunds should be compared with gerunds to achieve a parallel construction. “I like playing more than working.”

15. Avoid footnotes to discuss ideas you do not know how to incorporate into the opinion. Best to use footnotes sparingly. Good for citing a long statute.

16. After writing the masterpiece, put it away for a day or two. Then come back to it. Then revise it. Then put it away. Then revise it again. At this point you will realize that a good brief is not written, but only rewritten. If you are truly critical of your own writing, there is a good chance you will know whether it is honest and has integrity.

I violate these rules with agonizing regularity. I would violate them many more times if they were not there as a reminder. I hope they help you too.

Even if you forget the rules, keep this goal in mind: Unlike the poet who writes to understand, we write to be understood.