In the following interview, Chief Justice John Roberts contrasts reading a bad brief, which he likens to hacking through a jungle with a machete in an attempt to get to the point, with reading a good brief, which allows the reader to put his arms around the argument to see if it works.  With metaphors like these, it’s no wonder that he became Chief Justice.  Check it out:

OK so we all make grammar mistakes. We type “its” rather than “it’s.” But we cringe when a bus drives by with Blue Cross/Blue Shield’s latest slogan “Live Fearless!”  It’s like fingernails on a chalkboard. In her book Eats, Shoots & Leaves: The Zero Tolerance Approach to Punctuation, Lynne Truss provides a diagnosis:

We are like the little boy in The Sixth Sense who can see dead people, except that we can see dead punctuation. Whisper it in petrified little-boy tones: dead punctuation is invisible to everyone else — yet we see it all the time. No one understands us seventh-sense people. They regard us as freaks. When we point out illiterate mistakes we are often aggressively instructed to “get a life” by people who, interestingly, display no evidence of having lives themselves. Naturally we become timid about making our insights known, in such inhospitable conditions. Being burned as a witch is not safely enough off the agenda.

 

Now Steven Fry, a master wordsmith, really tells us to “get a life”:

Prospective clients often ask me about the statistical possibility of being heard by the Pennsylvania Supreme Court.  I typically tell them that the likelihood of being heard is remote.  In 2011, the court received 2,363 petitions and granted only 101.  That figure is somewhat misleading because in calendar year 2011, the court granted some petitions filed in previous years.  At the end of 2011, it had not yet considered 1,013 petitions, some of them filed prior to January 1, 2011.  However, the numbers are fairly consistent across the years.  In 2010, the court received 2,282 allocatur petitions and granted 104.  In 2009, it received 2,420 allocatur petitions and granted only 86. Therefore, any given petition has a less than 5% chance of being granted.

These figures do not tell the whole story because the court grants allowance of appeal in far more criminal cases than in civil cases. My review shows that in 2012, in addition to a handful of summary grants/remands, it granted allocatur in 30 civil cases.  I culled the following cases from LEXIS—which may not have reported everything—in an attempt to get some sense as to the types of cases the court has agreed to consider:

These represent a broad array of issues and facts: four insurance coverage cases, a sprinkling of evidence issues, a few workers’ compensation cases, a smattering of zoning appeals, etc. It is difficult to determine if the court set out in advance to find a wide assortment from the world of civil litigation or if it just turned out that way.

So how to advise clients?  I typically explain that even if there is an “agenda” governing the allocatur process, it is inscrutable and mysterious.  If the Court has recently decided a series of evidence issues, it may not be in the mood to tackle another.  Or maybe it will. There’s no way to know.  One might be able to persuade the court to weigh in on an issue that lower courts have treated inconsistently to sow clarity in the face of confusion.  Unless, of course, the court has other more pressing issues on its plate.

And who said life isn’t arbitrary?

Although the Superior Court affirms over 80% of the time, the statistics show an increased percentage of reversals in cases argued before the assigned panel. For each of the calendar years 2007 – 2011, roughly 10% of the cases submitted on briefs resulted in reversals. In contrast, during the same period, roughly 16% to 19% of the appeals resulted in reversals. [Source: “Advocacy in the Superior Court: Request Oral Argument or Submit on Briefs?” by Judge Christine Donohue, in Appellate Advocacy at the Movies, (2012)]

One possible explanation for this fact is that the judges become more familiar with the argued cases. If a case is argued, a judge first reads the briefs, listens to and participates in argument, and then meets with the other panel members thereafter to discuss the case and to cast a preliminary vote. After the case is assigned for a decision, the judges give the case to a clerk, who prepares a preliminary decision, which is then circulated to the panel members for further review and a final vote. During the process, the judges have five points of contact: (1) preparation for argument, (2) oral argument, (3) preliminary vote discussion, (4) the written decision, and (5) the final vote.

If a case is not argued, the judges have far less contact with the case. A judge may discuss it with his/her clerks and with the other panel members, but that contact is “truncated.” [Id.]

If you seek reversal, you should request oral argument.

Question: In a direct criminal appeal, can a defendant raise the issue that his trial counsel did not provide effective assistance of counsel?

Answer: For now at least, the answer is generally “No.”

In Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), the Supreme Court held, “that, as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review.” Id. at 738. The rationale behind the Grant rule rested on three grounds. “First, ineffectiveness claims, by their very nature, often involve claims that are not apparent on the record.” Id. at 737. “Second, even presuming the merit of the claim is apparent on the existing record, oftentimes, demonstrating trial counsel’s ineffectiveness will involve facts that are not available on the record.” Id. “Third, as multiple courts have recognized, the trial court is in the best position to review claims related to trial counsel’s error in the first instance as that is the court that observed first hand counsel’s allegedly deficient performance.” Id.

In Commonwealth v. Bomar, 826 A.2d 831, 853 (Pa. 2003), the Supreme Court permitted ineffective assistance claims to be litigated on direct appeal because the defendant in that case raised them before the trial court, which conducted a hearing to determine their merits.  However, several post-Bomar decisions have left serious questions as to whether such a right will be allowed on a going-forward basis.

In 2010, in Commonwealth v. Holmes, 996 A.2d 479, 480 (Pa. 2010), the Supreme Court granted allocatur to decide the following issues:

Whether the claims of ineffective assistance of counsel which are the exclusive subject of this nunc pro tunc direct appeal: (1) are reviewable on direct appeal under Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (Pa. 2003); (2) should instead be deferred to collateral review under the general rule in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (Pa. 2002)[,] that defendants should wait until the collateral review phase to raise claims of ineffective assistance of counsel; or (3) should instead be deemed reviewable on direct appeal only if accompanied by a specific waiver of the right to pursue a first PCRA petition as of right. See Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 148 n.22 (Pa. 2008) (‘Prolix collateral claims should not be reviewed on post-verdict motions unless the defendant waives his right to PCRA review . . . .’)

In Commonwealth v. Barnett, 25 A.3d 371 (Pa. Super. Ct. 2011), the Superior Court held that, until the Supreme Court decides Homes,  it will no longer consider ineffective assistance of counsel claims on direct appeal absent an “express, knowing and voluntary waiver of PCRA review” in the trial court.

Therefore, for the time being at least, the Superior Court will accept effective assistance of counsel issues only if the defendant waives his PCRA rights in the trial court.

Years ago I had the opportunity to watch oral argument in a contract case in the Court of Appeals in London. The argument went on all morning.  Then the judges broke for lunch and announced their intent to return for the afternoon session . . .  in the same case. The barristers had not prepared written briefs prior to oral argument, and the judges were only casually familiar with the case before commencing the morning session. As each barrister orally cited a reported opinion, one of the judges would make a remark like “oh yes I remember that opinion, isn’t that the case in which. . . .” while the court personnel ran up and down ladders in the courtroom pulling books off of the shelves and placing them before the judges. (I do hope they now have computers.)

Prior to oral argument, the judges had not seen anything like what we would call a “brief.” In fact, the very word “brief” in English practice means a document or series of documents prepared by the solicitor for the barrister to use in arguing his case. The court never sees the “brief.”

I have since learned that this was once the practice in American appeals courts as well. Initially, the United States Supreme Court did not require written briefs. In 1821, it first required the filing of briefs, which were to contain “the substance of all material pleadings, facts, documents, on which the parties rely, and the points of law and fact intended to be presented at the argument.” 19 U.S. Reports (6 Wheat.). In December 1854, the Supreme court heard three forfeiture cases.  The Attorney General filed a seven-page brief in the first.  In each of the latter two, he filed a one-page brief referring the Court to the first. In 1884, the Supreme Court mandated for the first time that briefs include legal arguments.  Over time, it gradually reduced the time allotted for oral argument.

The use of written briefs has made appellate courts far more efficient. American appellate judges dispose of many more appeals than their predecessors or their British counterparts, and they often do so without any oral argument. Although the Pennsylvania Superior Court allows oral argument as a matter of right, the Third Circuit granted oral argument in only 15.8% of cases in 2009.

Even in those courts, such as the Pennsylvania Superior Court, that permit oral argument as a matter of right, it is so short— either five or 15 minutes—that most appeals are decided before counsel even open their mouths.

A brief is the key to winning an appeal.  It is essential that it be prepared in a competent and professional manner.

“One picture is worth ten thousand words.”

This familiar maxim was coined (according to the Oxford Dictionary of Quotations) by Frederick R. Barnard, in the publication “Printers Ink” on March 10, 1927. It is not a Chinese proverb. It is, however, particularly applicable to legal briefs, into which thousands of words are daily spilled.

One brief writer, ordered to limit his brief to five pages, hired a graphic illustrator to create a “graphic novelette,” which takes jabs at the judge for demanding that such complex issues be reduced to five pages. The clerk accepted it for filing, but the judge ignored it.

Here it is:

The full brief may downloaded in PDF form here: comic book brief

It reminds me of the “Classics Illustrated” comic book versions of great literature that I read in my youth.  But a whole lot more amusing.

Why use sparingly?

• Many Readers dislike visual impact—requires shift to shorter line length
• Surveys show judges and staff attorneys tend to skip over quotes more than six or seven lines in length
• Judges view them as evidence of laziness

When to Use?

• When the quotation enunciates the legal test
• When words so eloquently express an important idea that you could not say it better
• When words are so closely identified with topic that they are inseparable from it.

• Explain why the case is on point
• Introduce key ideas before the quote
• Use underline, italics, or bold to identify key passages

Example:

The following is an ineffective block quotation:

     This quotation is ineffective because it requires that the reader instantly shift to the text of the opinion without any explanation as to what may be found therein.  The reader may instinctively skip over the block text.

With a strong introduction and judicious use of bolding and underlining, the block quotation comes alive and becomes a vivid form of written advocacy:

           Of course, one could remove the block quotation altogether:

Appellate advocates regularly wrestle with the task of presenting the facts of a case in a light most favorable to a client without engaging in “argument.” Although there is no bright line separating “argument” from effective advocacy, a review of the decisions reveals several helpful principles.

The Pennsylvania Rules of Appellate Procedure specifically proscribe argument in a statement of facts:

 Rule 2117.  Statement of the Case

 

     (b) All argument to be excluded. The statement of the case shall not contain any argument. It is the responsibility of appellant to present in the statement of the case a balanced presentation of the history of the proceedings and the respective contentions of the parties.

Pa. R.A.P. 2117 (Emphasis added).

In one reported decision, the Pennsylvania Superior Court chided counsel for “pervasive violation of this rule.”  Helpin v. Trs. of the Univ. of Pa., 969 A.2d 601, 608 (Pa. Super. 2009).

Although the Federal Rules of Appellate Procedure contain no similar rule, some of the Circuits have adopted local rules that prohibit argument.  The Seventh Circuit local rule provides:

 (c) Statement of the Facts. The statement of the facts required by Fed. R. App. P. 28(a)(7) shall be a fair summary without argument or comment. No fact shall be stated in this part of the brief unless it is supported by a reference to the page or pages of the record or the appendix where that fact appears.

USCS Ct App 7th Cir, Circuit R 28.

Such rules have inspired motions to quash and to sanction counsel for submitting briefs that allegedly violate them.  This has inspired motion practice with inconsistent results.  In Wiesmueller v. Kosobucki, 547 F.3d 740 (7th Cir. 2008), Judge Posner reviewed the case law and concluded that forbidden “argument” in the statement of facts “means an argumentative rather than a neutral presentation of the facts of the case.”  Id. at 742.  In the author’s opinion, this definition begs the question and seems to invite additional motions for sanctions for filing an “argumentative” rather than “neutral” statement of facts.  In Day v. Northern Ind. Pub. Serv. Corp., 164 F.3d 382, 384 (7th Cir. 1999), the Seventh Circuit personally sanctioned an attorney for filing a brief with an “argumentative” statement of facts that treated appellant’s legal “position as established, even though the district court found it to be unsupported.”  Id. at 384.  In Palmquist v. Selvik, 111 F.3d 1332 (7th Cir. 1997), the court struck the defendants’ statement of facts as improperly argumentative, which it defined as failing to cite testimony favorable to the plaintiff and failing to “give the entire story” of the testimony.  Id. at 1337.  It cited Avitia v. Metropolitan Club of Chicago, 49 F.3d 1219, 1224 (7th Cir. 1995), in which the same court warned counsel of the possibility that a brief could be stricken for treating contested testimony of a losing party’s witnesses as established.

In Markowitz & Co. v. Toledo Metropolitan Housing Authority, 608 F.2d 699 (6th Cir. 1979), the Sixth Circuit noted that where issues of fact are “bitterly contested,” the parties may explain their respective versions “as long as it is clear that it is just their version, and as long as both the findings of the trial court and their opponent’s position are also accurately and fairly presented.”  Id. at 704.  A “scrupulously honest, straightforward summary of facts of a case” can be persuasive in favor of one side or another.  However, argumentative language that trial court’s findings are “astonishing,” and “extraordinary,” or describing an opponent’s position as “ludicrous” is not acceptable.  Id. at 704.

Although somewhat inconsistent, these opinions provide helpful principles.  In a statement of facts:

• Don’t present your client’s position as “established” if it is not.
• Don’t omit obvious facts supporting your adversary’s position.
• Don’t label your opponent’s position as “astonishing,” “extraordinary,” “ludicrous” or the like.
• One may, however, assert a “position” about the facts of the case so long as it is identified as such.

Suggestions

          After presenting the facts—generally chronologically, giving them the best possible “spin” in your client’s favor—one may summarize the “positions” of the parties in the following manner:

Plaintiff contends that defendant was negligent because . . .

 

Defendant, on the other hand, denies negligence because . . .

In an appellate brief, the statement of facts may contain a section dedicated to the “trial” in which the respective positions of the parties are outlined in the following manner:

 Trial

          The matter proceeded to trial on January 20-23, 2010.  At the trial, plaintiff argued that defendant was negligent.  In support of that proposition, she called Witness X, who testified . . .

          Defendant contended that he was not negligent, testifying  . . . .  However, defendant admitted that . . . .

If expert witnesses testified, then the lines of cross examination can be summarized and emphasized:

          Plaintiff’s medical expert, Thomas Jones, M.D., testified that the defendant should not have prescribed Bad-Drug because it causes stomach ulcers.  Tylenol could have been used in its place. 

          The defense expert, Marcus Welby, M.D., testified Bad-Drug was appropriately prescribed.  He agreed, however, that the Physicians’ Desk Reference lists gastrointestinal ulceration as Bad-Drug’s “most serious risk;” it predisposes a patient to ulceration; it must used with caution; patients with coagulation disorders and older patients should avoid it; a single dose can start the inhibition of prostaglandin; and an ulcer can occur “at any time.” 

These techniques allow an advocate to present a client’s position to the court in the best light without engaging in “argument.”

The effective use of headings not only organizes the arguments but also assists the reader who loses the thread to get back on track.  Briefs are boring.  Headings allow a reader who loses concentration and dozes off in the middle of a page to go back and pick up where left off.

Effective headings are usually specific

Too General:

I.    The Unemployment Compensation Appeal Board erred when it granted compensation benefits.

Better:

I.    The Unemployment Compensation Appeal Board erred by granting compensation benefits to an employee who committed six acts, any one of which would have disqualified him.

Use the word “because”

Too general:

I.          The court should deny counsel fees.

Better:

I.          The court should deny counsel fees because employer presented medical evidence in three of the four pending petitions, and the penalty petition involved a simple issue of law.

Too general:

I.          This Court’s order does not involve a “controlling question of law.”

Better:

I.          This Court’s order does not involve a “controlling question of law” because there are alternative bases for federal jurisdiction.

Nest  headings and subheadings

     Think of headings and subheadings as Russian nesting dolls.  Start with a general principle and then create lower and lower levels. As the levels get “smaller” and more detailed, they build backward toward the higher levels.

Example:

I.          Amalgamated Widgets, Ltd. is subject to personal jurisdiction in Pennsylvania.

            A.        Amalgamated Widgets, Ltd. does business in Pennsylvania.

1.  B.       Amalgamated Widgets, Ltd. is subject to jurisdiction in Pennsylvania through its  wholly-owned subsidiary and alter ego, Consolidated Widgets, Inc.

1.         This Court should give preclusive effect to the finding of the Eastern District of Pennsylvania in a companion case that Amalgamated Widgets, Ltd. is indistinguishable from Consolidated Widgets, Inc.

 

2.         Amalgamated Widgets, Ltd.’s corporate merger activities in Pennsylvania are further evidence that it is indistinguishable from Consolidated Widgets, Inc.

 

3.         Overlapping corporate officers and directors underscore the fact that Consolidated Widgets, Inc. is an alter ego of Amalgamated Widgets, Ltd.