Keep it Simple: Using Your Brief to Educate

Recently, Tessa wrote about useful tools for scoping out the court.  In her post, Tessa discussed resources for learning more about your audience, so you can effectively tailor your brief and argument.

In this post, I’ll address some strategies for those times when learning more about your audience just isn’t possible.  For instance, if you’re arguing to a panel of the Fourth Circuit, you’ll have no idea who’s been pouring over your brilliant brief until it’s show time.  Similarly, if your audience is a state supreme court, it’s unlikely that any specific tidbit is going to save you.  Consider the odds.  In North Carolina, where I practice, you’d be left trying to anticipate the desires of seven justices, each with a different background.  

So what’s the advocate to do?  Use your brief not only to argue but also to educate. 

Here’s some background. Recently, I heard North Carolina’s Senior Associate Justice, Paul Newby, speak at a CLE. Justice Newby was tasked with explaining the Supreme Court of North Carolina’s mandatory appellate jurisdiction in complex business cases.

The Justice made the point that too often the nuance of a complex business case may be lost on his colleagues.  Each of them has a different background, and only one — himself — had a history of litigating business disputes, like shareholder derivative actions.  

The problem isn’t that the justices don’t approach each case carefully.  Quite the opposite.  It’s that they’re spending too much time trying to grasp the foundational principles, which the attorneys didn’t explain sufficiently, and thus don’t have enough time to digest the arguments. 

That got me thinking.  Lawyers get tunnel vision.  We know our case — the ins, the outs, the twists, the turns.  Sometimes, we’ve lived with it for months or maybe even years. We’ve done the legal research and read all the pertinent authorities. 

Being so caught up may not be such a bad thing.  If you were involved before the appeal, you have an intimate knowledge of the case that an appellate lawyer will try her best to recreate.  But being so caught up also has its downsides. It’s easy to become too comfortable with a set of facts, or with a legal principle.  

But skimping on the basics can keep your reader from buying what you’re selling.  If a judge has to read your argument multiple times to get a basic grasp on the issues, you’re losing ground.  The time that a judge spends re-reading your brief, pouring over the record, or, worst of all, doing background legal research is time that he or she is not spending thinking critically about your case.  Chief Justice John Roberts said as much in a 2007 interview with Brian Garner.  (Read the whole thing, but especially check page 28 of the PDF). 

So what can we do about it? Like all good legal problems, the answer depends.  The answer depends on whether the wrinkle in your case is factual or legal. 

If the complicated issue is factual, consider a tactic that a partner of mine calls “putting on the white hat.” Take the opportunity to explain, as honestly as you can, not only the facts behind your case but also the context.  Why are the parties fighting? What are their motivations? 

I know, I know.  That sounds more like a mediation statement than an appellate brief.  But the reader will appreciate it. By putting the case in context, you’ll have gained two advantages.  First, you will have explained the case in a way that helps the judge or her law clerk understand it. It’s likely your opponent won’t, which also means you’ll get a chance to present your case’s human factors.  And that leads to the second point. By explaining the human factors motivating your case from your client’s perspective, you’ll gain a subjective advantage. You’ll humanize your client. 

Sometimes, putting your facts in context is as simple as an extra sentence, or an extra phrase.  For instance, if you’re in an employer-union ERISA dispute, consider telling your reader what the employer does.  Likewise, consider telling your reader who the union represents.  Sure, these facts have nothing to do with the nuance of the ERISA plan in dispute, and you probably won’t reference them anywhere in the brief.  But this type of stuff is important if you want your brief to do more than recite facts; it helps your brief tell a story. 

In any case, if the complicated issue is legal, then the best approach is to keep it simple.  Remember, judges are generalists. While you might live and breathe environmental or bankruptcy or intellectual property law, that doesn’t mean that your judge does.  So think twice before you start using terms of art without first describing them in plain English.  Slow the pace of your brief, educate your reader, and then explain why you should win.  

I recognize that it might be frustrating to go back to basics.  But there’s yet another benefit. You have the chance to teach the judge the applicable law as you see it. It’s another chance for advocacy, no matter how subtle. 

To conclude, I’ll leave you with this thought, which, to some extent, ties these points together.  Be creative about how you structure your brief. For instance, if you’re arguing about a novel issue of statutory interpretation or a complex statutory scheme, the court will likely be less interested in the facts of your case than with an overview of the statute.  Lead with it.  Embrace it. You can take a lot of approaches when writing your brief and, fortunately, very few are wrong. But more on that in my next post.