Judge Michael’s Brief-Writing Tips, Part 2

Last post, I shared part of a great list of ten brief-writing tips from the Hon. Terrence L. Michael, Chief U.S. Bankruptcy Judge for the U.S. Bankruptcy Court for the Northern District of Oklahoma and a member of the Bankruptcy Appellate Panel of the Tenth Circuit.  

Judge Michael has many helpful forms, orders, and links on his chamber’s webpage, which you can see here:   https://www.oknb.uscourts.gov/content/honorable-terrence-l-michael.  The judge’s website material includes his Ten Tips for Effective Brief Writing (at Least With Respect to Briefs Submitted to Judge Michael), at https://www.oknb.uscourts.gov/sites/oknb/files/briefwritingtips.pdf.

In response to my post, several other writers shared their excellent tips with me.  Of special note, Judge A. Benjamin Goldgar, Chief Judge of the U.S. Bankruptcy Court for the Northern District of Illinois, shared his short and helpful tips originally published in a Chicago Bar Association piece.  I highly recommend you check out Judge Goldgar’s article here:  https://1.next.westlaw.com/Link/Document/FullText?cite=20-MAY%20CBA%20Rec.%2051&findtype=Y&__lrTS=20230819185138613&transitionType=Default&contextData=%28sc.Default%29.

Moreover, I have a few more of Judge Michael’s tips for you.  As a reminder, Judge Michael started his tips with these notes:    

I was once asked (OK, I once wished that I had been asked) what judges look for in written submissions. After considerable thought, and with some trepidation, I have tried to set some general principles down in writing.  What follows is a list of ten ideas/suggestions for your consideration. I do not purport to speak for any of my colleagues; this list, for better or worse, is my own.

For this post, I’m summarizing Tips Six to Ten, with a focus on the parts of Judge Michael’s tips that are especially helpful for appellate writing.   

Tip 6.  Quality Is Job One (so Check Your Cites).  When students, or lawyers, complain to me about citations, I am honest.  I do not like The Bluebook and I am open to any consistent system of citation in general.  However, properly applying a style manual, like The Bluebook, helps increase your credibility with the court.  Judge Michael explains why in this tip on checking citations and ensuring your cases support your points: 

Check your cites. Make sure they are accurate and that each case you are relying on is still good law. We do. There is nothing more frustrating than being unable to find a case because the citation contained in the brief is wrong. There is nothing less persuasive than finding out that a case you have cited to us has been overruled or misquoted. These flaws weaken your entire presentation.

Tip 7.  Present the Facts of Your Case Accurately.  While Judge Michael phrased this tip for bankruptcy court, where the judge is the finder of fact in trial-level proceedings, this point is well taken at the appellate level as well.  The judge explained, “[i]f you are submitting a post-trial brief, make sure the facts are in the record.”  Moreover, as with case citations, make sure your appellate briefs properly cite the record and do not lose persuasion by misstating the facts.  As the judge notes, his point on making sure the facts actually appear in the record “sounds too basic to merit discussion,” but nonetheless “[t]his advice is based upon experience.”

Tip 8.  Tell the Court Exactly What You Want.  Inexperienced appellate counsel often ask reviewing courts for relief they cannot provide, like new rulings on trial motions, or fail to explain exactly what relief their client wants beyond a “reversal.”  Judge Michael makes this point in his seventh tip, saying:  “It seems simple, but it isn’t. Every brief (and motion, for that matter) should conclude with a statement telling the judge exactly what you want done in the particular case. We need to know.”

Tip 9.  Leave the Venom at Home.  Despite this point appearing on almost every list on legal writing I’ve ever seen, it bears repeating.   According to Judge Michael:  “I have yet to meet a judge who enjoys reading a brief filled with hostility toward and/or personal attacks upon the other side.”  He explains that, “[w]hether you like (or get along well with) your opposition has little to do with the merits of a particular case.”  Instead, the “most effective attack you can make is to persuade (there’s that word again)” the court “that the other side is wrong.”  

The judge cautions us:  “Remember, if you win, they lose. Isn’t that enough? Words like these:

ridiculous

scurrilous

ludicrous

preposterous

blatant

self-serving (come on, all evidence and argument is self-serving)

nonsensical

do not help you. Don’t use them.”

Tip 10.  Seek Reconsideration Sparingly (But Appeal).  In his final tip, Judge Michael reminds us not to ask for reconsideration automatically.  Appellate counsel can use this tip to be more thoughtful about asking for rehearing on appeal. 

In his tip ultimately stressing the right to appeal, the judge first explains that he has “been surprised by the number of motions to reconsider which counsel file.”  He asks:  “If we spend 50 or more hours researching and writing an opinion (which is not uncommon), why would one expect us to change our mind unless there is an obvious and egregious error.”  Thus, “[m]ost motions to reconsider are a waste of everyone’s time. If you don’t like the decision, appeal. It is your right. We don’t take offense if you exercise it.”