March 2008 • Vol. 28 No. 3 | An E-Publication of the Los Angeles County Bar Association

Who Reads Your Brief—and How?

By Scott Wood, clinical professor, Loyola Law School, Los Angeles. Wood offers writing workshops for litigators and one-on-one consultations. He can be reached at Scott.Wood@LLS.edu.

Who reads your brief—and how? Don’t we wonder? After logging untold hours researching, drafting, and revising; after we ship off the brief with a hope and a prayer, don’t we wonder what happens to our magnum opus when it reaches the court’s chambers? I thought we might gain some insights if I asked a few questions of my friend and former student Paul Kenney, a long-serving staff attorney in the California Court of Appeal.1 Here’s what happens to appellate briefs that he reads:

SW: What happens to the document physically? What is the usual handling, by whom, and for how long?
PK: The originals stay in our file room. The copies go first to the panel when the records are brought up, and the staff attorney gets them when the case is assigned in chambers by the designated author. The judicial assistant sometimes uses the briefs when checking the opinion before filing. I recycle my briefs when the case is final as to our court.

SW: Do different readers use the brief for different purposes? Does the staff attorney read it differently than the justice or differently from another justice’s staff attorney?
PK: Given the volume of briefs the judges must digest, not to mention the writ petitions and motions, I suspect that staff attorneys, responsible for fewer cases, may dwell longer on, say, footnote 9 on page 43 than the judges. I read the respondent’s brief first because the rules of appellate review favor that side, but other staff attorneys might not.

SW: As a staff attorney, what do you look for first?
PK: I usually peek at the briefs when the appeals come into chambers to see what kind of case it is. Criminal or juvenile case appeals—a very large portion of our workload—generally involve fact-intensive issues briefed by experienced appellate attorneys, so you usually know what to expect, but the other civil cases are wild cards. I look briefly for publishable issues and how much work will be involved.

SW: Are parts of the brief re-read, perhaps repeatedly?
PK: Yes, but it is difficult to generalize because each appeal is unique—concessions, disputes about the scope of review, policy implications, and references to issues pending before our supreme court come to mind. We need to be sure a point is not contested, the scope of review is crucial, we don’t want the sky to fall if we rule against your client, and what the higher court is about is important to us.

SW: We usually spend a good deal of time trying to fashion a theme, sometimes a controlling metaphor, to unify the arguments. Do such rhetorical devices matter much or at all? Do any such devices stick in your memory as making a difference in the outcome of the case?
PK: This is the old English teacher in you talking about “controlling metaphors.” I could maybe identify them in the poems you made me read in high school, but at this point a metaphor in a brief is like a bug that hits my windshield at 65 mph. Don’t even try it unless you are very skilled. Save the rhetoric for the jury. The only theme you need on appeal is prejudicial error.

SW: What happens if the respective parties’ briefs are hugely different in quality—a grossly inferior brief versus a masterful product? Do you do the work for the incompetent lawyer (for example, legal research) to balance this mismatch?
PK: We cannot help appellants because it is their burden to demonstrate error, but respondents catch a break because we must affirm if the judgment can be justified on any theory. Since we do not automatically reverse even if no respondent’s brief is filed, the bold respondent could skip filing one, but why trust that we can figure out on our own why you should win?

SW: Any little secrets you are willing to divulge about the response of appellate readers to bad briefs?
PK: No secrets, just pain. If the briefs are bad enough, I will put off the agony of reading them and start looking at the record and scratching out the basics of the opinion—identity of the parties and issues, procedural history, etc.—before resuming doing my duty, which I will faithfully if not happily perform in every case, of eventually reading every single miserable word you write.

SW: Lawyers seem to divide into two camps about the number of arguments to include in a brief. One camp targets the cores issues and makes few—two or three—arguments. The other camp covers every issue, makes multiple arguments, provides the court with a long row of hooks. What does the court like to see?
PK: It depends on whether you are the appellant or respondent. If you are the appellant, brief fewer issues. How many mistakes can one trial judge make? If you are the respondent, give us as many reasons as possible to rule in your favor and the luxury of choosing which way to affirm.

SW: Can you offer some general observations about the effective uses of supporting authority? I’m thinking about technical matters, such as using string cites, putting citations into footnotes, using parenthetical comments after a case cite, etc.
PK: I don’t think the alternatives you mention make a crucial difference, but any authority without a quotation or at least a parenthetical comment after the cite is extra work for me.

SW: What are the two or three most important “do’s” and “don’t’s” for brief writers? What are the sources of a brief reader’s joy? What gives the reader an urge to kill?
PK: No such highs and lows at the court of appeal. The first, second, and third most important thing for brief writers to have is a good case on the merits. You think you can persuade us with your brilliance; we think we are wise enough to get to the right result whatever you say. Maybe we are both kidding ourselves, but it keeps things interesting.

Knowing Paul, I think some of these answers are too modest. Even so, the diligence shines through and gives us confidence that appellate briefs can make a difference. They are worth the effort; indeed, we have no choice if our clients are to have the representation they deserve. Even though he warns, “The odds are stacked against appellants with bad briefs,” respondents can’t assume victory simply because the appellant’s brief is sloppy. The court will work to “get the right result whatever you say.” But whatever you say in your brief will be read, probably re-read. Get to work—The judges and their staff attorneys are waiting.

1 Paul Kenney’s biographical information includes Harvard A.B. 1976, J.D. 1980. Building on what he learned about metaphors and life from his high school English teacher and football coach Scott Wood, Kenney became a staff attorney at the First District Court of Appeal, where he has been reading briefs for 20 years.




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