(click the link)
Excerpts:
"As you may have guessed. Sanches did not prevail on appeal. What lessons can we draw from her misfortune?
- Keep your eye on the ball. A brief is a persuasive document. If done well, it will be a resource for the judges and their clerks, and will help them get to the correct answer. The goals is to be helpful to the judge. Showing the appellate court how and why the lower court was wrong (in clear--and temperate--language) is helpful. It gives the court law and analysis it can use in framing its opinion. Just telling the court that the lower court was wrong is much less helpful. The court knows your stance on that point from the cover of your brief. And calling anyone names is distracting and affirmatively unhelpful. It erodes your credibility and wastes precious words.
- It pays to proofread. Kendall's take on Sanches focuses on the importance of professionalism, grammar, and proofreading. He's dead on. Ultimately, you are trying to persuade the judge. Your personal credibility is central to that effort. Making glaring, basic mistakes does not establish your authority as a careful thinker.
- Words not to use. I had a fun conversation with a SCV justice a few years ago about words that you should just never use in legal writing. These include disingenuous, pretext, egregious, thinly veiled, and basically anything that sounds like a fancy way of calling your opponent a liar. Some judges interpret these cheap shots as an implicit admission that you don't have much to say about the substance of the issues; other just do their best to ignore them. Either way, you are burning up words without advancing your position. In the wake ofSanches, I will be adding "incompetent" and "egregious" to my list of words not to use. The Rule of Never-Use, of course, goes double or triple when you are talking about a judge.
- Don't take liberties with the caselaw. The language quoted above comes at the end of the opinion. But before we even get to that point, Sanches has riled the court up through a discussion of caselaw that includes "a profound mischaracterization and understatement" of the facts of one case, and a discussion of other cases involving harassment that was "nothing like" the conduct she alleges. You will never trick the court about the law. The judges have clerks, and they will check up on you. Your best bet is to treat the law fairly, and address the ways it helps and hurts your argument. Your goal is to build credibility with the court. The only way to do that is through scrupulous accuracy. Don't try to hide the bad stuff from the court; identify it, then explain why it doesn't matter.
- Don't wind up on Above the Law. It's bad for business development."
